EXHIBIT 10.2
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is made and entered
into as of the __________ day of ___________, 2004 (the "Effective Date"), by
and between Fidelity National Information Services, Inc., a Delaware corporation
("FNIS" or "RECEIVING PARTY"), and Fidelity National Financial, Inc., a Delaware
corporation ("FNF" or "PROVIDING PARTY"). FNIS and FNF shall be referred to
together in this Agreement as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, the Board of Directors of FNF has determined that it is in the
best interests of FNF and its stockholders to separate the Transferred Business
from FNF, pursuant to the terms and subject to the conditions set forth in the
Master Agreement by and between FNF and FNIS dated as of ____________, 2004 (the
"Master Agreement");
WHEREAS, in connection with the separation of the Transferred Business (as
such term is defined in the Master Agreement), FNF has contributed, has caused
members of the FNF Group (as such term is defined in the Master Agreement) to
contribute or otherwise has transferred certain assets and liabilities
associated with the Transferred Business to FNIS and certain subsidiaries;
WHEREAS, FNIS has offered and sold for its own account a limited number of
shares of FNIS Common Stock pursuant to an initial public offering of such
shares (the "IPO");
WHEREAS, the Master Agreement anticipates certain Ancillary Agreements (as
such term is defined in the Master Agreement) in connection with the IPO,
including this Agreement; and
WHEREAS, FNF has the authority and power, or has caused members of the FNF
Group to authorize and empower FNF, to deliver the rights herein granted to
FNIS, and FNIS has the authority and power, or has caused members of the FIS
Group (as such term is defined in the Master Agreement) to authorize and empower
FNIS, to deliver the rights herein granted to FNF.
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 hereby agree as follows:
ARTICLE I
TRANSITION SERVICES
1.1 Transition Services. This Agreement sets forth the terms and
conditions for the provision by PROVIDING PARTY to RECEIVING PARTY of various
transition services and products, as described below and in Schedule 1.1(a)
attached hereto (the Scheduled Services, the
Omitted Services, the Resumed Services and Special Projects (as defined below),
collectively, the "Transition Services").
(a) PROVIDING PARTY, through its Subsidiaries and their respective
employees, agents or contractors, shall provide or cause to be provided to
RECEIVING PARTY and its Subsidiaries all services set forth on Schedule 1.1(a)
(the "Scheduled Services") on and after the Effective Date (with such services
to be provided to the RECEIVING PARTY's Subsidiaries (as defined below) as they
become Subsidiaries of RECEIVING PARTY, subject to the exception in clause (ii)
of Section 1.2(a)). RECEIVING PARTY shall pay fees to PROVIDING PARTY for
providing the Scheduled Services or causing the Scheduled Services to be
provided as set forth in Schedule 1.1(a). "Subsidiary" shall mean, with respect
to any Party, any corporation or other legal entity of which such Party controls
or owns, directly or indirectly, more than fifty percent (50%) of the stock or
other equity interest entitled to vote on the election of the members to the
board of directors or similar governing body.
(b) PROVIDING PARTY, through its Subsidiaries and their respective
employees, agents or contractors, shall provide or cause to be provided to
RECEIVING PARTY and its Subsidiaries all services that PROVIDING PARTY was
performing for RECEIVING PARTY and its Subsidiaries as of the Effective Date
that pertain to and are a part of Scheduled Services under Section 1.1(a) (with
such services to be provided to the RECEIVING PARTY's Subsidiaries as they
become Subsidiaries of RECEIVING PARTY, subject to the exception in clause (ii)
of Section 1.2(a)), which are not expressly included in the list of Scheduled
Services in Schedule 1.1(a), but are required to conduct the business of
RECEIVING PARTY and its Subsidiaries (the "Omitted Services"), unless RECEIVING
PARTY consents in writing to the termination of such services. Such Omitted
Services shall be added to Schedule 1.1(a) and thereby become Scheduled
Services, as soon as reasonably practicable after the Effective Date upon
agreement by the Parties. In the event that RECEIVING PARTY or its Subsidiaries
had been allocated charges or otherwise paid PROVIDING PARTY or its Subsidiaries
for such Omitted Services immediately prior to the Effective Date, RECEIVING
PARTY shall pay to PROVIDING PARTY for providing the Omitted Services or causing
the Omitted Services to be provided hereunder fees equal to the actual fees paid
for such Omitted Services immediately preceding the Effective Date plus an
additional twenty percent (20%) thereof; provided, that payment of such fees by
the RECEIVING PARTY for the Omitted Services provided hereunder shall be
retroactive to the first day of the calendar quarter in which either Party
identifies such services as Omitted Services, but in no event shall RECEIVING
PARTY be required to pay for any Omitted Services provided hereunder by the
PROVIDING PARTY or its Subsidiaries prior to the Effective Date. In the event
that RECEIVING PARTY or its Subsidiaries had not been allocated charges or
otherwise paid PROVIDING PARTY or its Subsidiaries for such Omitted Services
immediately prior to the Effective Date, the Parties' Team Leaders (as defined
in Section 1.4) shall negotiate in good faith a fee to be based on the fair
market value of such Omitted Services, which shall in no event be less than the
Default Fee (as defined below); provided, that payment of such fees by the
RECEIVING PARTY for the Omitted Services provided hereunder by the RECEIVING
PARTY shall be retroactive to the first day of the calendar quarter in which
either the Party identifies such services as Omitted Services, but in no event
shall RECEIVING PARTY be required to pay for any such Omitted Services provided
hereunder by the PROVIDING PARTY or its Subsidiaries prior to the Effective
Date. The "Default Fee" means a fee in the amount of one hundred twenty percent
(120%) of the Fully
2
Loaded Costs (as defined below). "Fully Loaded Costs" means an amount of one
hundred fifty percent (150%) of the salary of each full-time employee, on an
hourly basis, who provides the applicable Transition Service or Transition
Assistance. In the event that the Default Fee is charged for any Omitted
Service, PROVIDING PARTY shall have the right to terminate such service by
providing thirty (30) days written notice of such termination.
(c) At RECEIVING PARTY'S written request, PROVIDING PARTY, through
its Subsidiaries and their respective employees, agents or contractors, shall
use commercially reasonable efforts to provide or cause to be provided to
RECEIVING PARTY and its Subsidiaries any Scheduled Service that has been
terminated at RECEIVING PARTY'S request pursuant to Section 2.2 (the "Resumed
Services"); provided, that PROVIDING PARTY shall have no obligation to provide a
Resumed Service if providing such Resumed Service will have a material adverse
impact on the other Transition Services. Schedule 1.1(a) shall from time to time
be amended to reflect the resumption of a Resumed Service and the Resumed
Service shall be set forth thereon as a Scheduled Service.
(d) At RECEIVING PARTY's written request, PROVIDING PARTY, through
its Subsidiaries and their respective employees, agents or contractors, shall
use commercially reasonable efforts to provide additional or modified transition
services that are not described in the Schedule 1.1(a) and that are neither
Omitted Services nor Resumed Services ("Special Projects"). RECEIVING PARTY
shall submit a written request to PROVIDING PARTY specifying the nature of the
Special Project and requesting an estimate of the fees and costs applicable for
such Special Project, based on fair market value, and the expected time frame
for completion. PROVIDING PARTY shall respond promptly to such written request.
Within a commercially reasonable time after receipt of RECEIVING PARTY'S written
request, PROVIDING PARTY shall begin providing the Special Project; provided,
that PROVIDING PARTY shall have no obligation to provide a Special Project
where, in its reasonable discretion, it has determined that (i) it would not be
feasible to provide such Special Project, giving reasonable priority to other
demands on its resources and capacity both under this Agreement or otherwise or
(ii) it lacks the experience or qualifications to provide such Special Project.
To the extent that no mutual agreement regarding fair market value of the
Special Project can be reached by the Parties or their Team Leaders within ten
(10) days of receipt by RECEIVING PARTY of PROVIDING PARTY's response to such
written request for such Special Project, RECEIVING PARTY shall provide such
Special Project to PROVIDING PARTY for the Default Fee; provided, that the
PROVIDING PARTY shall have no obligation to provide any Special Project for more
than six (6) months following the receipt of such request by PROVIDING PARTY,
unless otherwise agreed to by the Parties.
1.2 Provision of Transition Services; Excused Performance. (a) To the
extent commercially reasonable, the Parties will work together and begin the
process of migrating the Transition Services from PROVIDING PARTY to RECEIVING
PARTY, one or more of its Subsidiaries or a third party (at RECEIVING PARTY's
direction) such that the completion of the migration of the Transition Services
from PROVIDING PARTY to RECEIVING PARTY, one or more of its Subsidiaries or a
third party, as the case may be, shall occur prior to the end of the Term.
PROVIDING PARTY shall provide or cause to be provided each of the Transition
Services through the expiration of the Term or for such shorter time as set
forth in the Schedule 1.1(a), except (i) as automatically modified by earlier
termination of a Transition Service by
3
RECEIVING PARTY in accordance with this Agreement, (ii) to or for the benefit of
any entity which ceases to be a Subsidiary of RECEIVING PARTY prior to the end
of the Term or (iii) as otherwise agreed to by the Parties in writing.
(b) All obligations of PROVIDING PARTY with respect to any one or more
individual Transition Services or Transition Assistance under this Agreement
shall be excused to the extent and only for so long as a failure by PROVIDING
PARTY with respect thereto is directly attributable to and caused specifically
by a failure by RECEIVING PARTY to meet any obligations (including any
performance) or by a breach by FNIS or any of its Subsidiaries under any other
Ancillary Agreement and/or the Master Services Agreement by and between Fidelity
Information Services, Inc. and FNF dated as of _____________, 2004 (the "Master
Services Agreement").
1.3 Third Party Vendors; Consents. (a) PROVIDING PARTY shall use its
commercially reasonable efforts to keep and maintain in effect its relationships
with its vendors that are integral to the provision of the Transition Services.
PROVIDING PARTY shall use commercially reasonable efforts to procure any
waivers, permits, consents or sublicenses required by third party licensors,
vendors or service providers under existing agreements with such third parties
in order to provide any Transition Services hereunder ("Third Party Consents").
In the event that PROVIDING PARTY is unable to procure such Third Party Consents
on commercially reasonable terms, PROVIDING PARTY agrees to so notify RECEIVING
PARTY, and to assist RECEIVING PARTY with the transition to another vendor. If,
after the Effective Date, any one or more vendors (i) terminates its contractual
relationship with PROVIDING PARTY or ceases to provide the products or services
associated with the Transition Services or (ii) notifies PROVIDING PARTY of its
desire or plan to terminate its contractual relationship with PROVIDING PARTY or
ceases providing the products or services associated with the Transition
Services, then, in either case, PROVIDING PARTY agrees to so notify RECEIVING
PARTY, and to assist RECEIVING PARTY with the transition to another vendor so
that RECEIVING PARTY may continue to receive similar products and services.
(b) Except as otherwise set forth on Schedule 1.3(b), PROVIDING
PARTY shall not be required to transfer or assign to RECEIVING PARTY any third
party software licenses or any hardware owned by PROVIDING PARTY or its
Subsidiaries in connection with the provision of the Transition Services or at
the conclusion of the Term.
1.4 Appointment of Teams. Each Party shall designate a team of persons,
which collectively have practical knowledge and expertise in each area of the
operations of the business that relate to Transition Services, and that are
authorized to make decisions with respect to the Transition Services (the
"Transition Team"). Each Party shall designate a member of the Transition Team
as team leader (the "Team Leader") who shall have the primary responsibility and
authority for making team task assignments, assessing, monitoring and reporting
the progress related to the Transition Services and making initial efforts at
resolving any disputes prior to implementation of the procedures in Section 1.6,
including those between the respective Transition Teams, concerning the fees for
and standards of performance of the Transition Services or concerning delays in
performance of the Transition Services. The initial members of the Transition
Teams and each Party's designated Team Leader shall be identified, along with
each person's title, areas of expertise and relevant telephone, fax and email
information, in
4
writing, and submitted to the other Party upon signing of the Agreement. Either
Party may appoint replacement Transition Team members upon written notice to the
other Party.
1.5 Transition Team Meetings. The Transition Teams shall convene meetings,
at least on a weekly basis, or on such other mutually agreed upon periodic basis
as required. It is the expectation of the Parties that the Transition Team
members shall communicate directly with one another and work together directly
with one another to ensure that all Transition Services are completed on a
timely and complete basis. The Team Leaders shall meet, at least weekly, or on
such other periodic basis as mutually agreed upon to discuss the status of the
Transition Services, as well as to answer questions, gather and exchange
information and, in accordance with Section 1.6, attempt to resolve Disputes (as
defined below) that may occur from time to time. These meetings may be
face-to-face, video or telephonic. Each Party shall bear its own costs of
attending Transition Team meetings. In the event that a Transition Team member
or Team Leader shall be unavailable to work on Transition Services for more than
five business days, then the applicable Party shall appoint a temporary or
permanent replacement and shall so notify the other Party in writing.
1.6 Dispute Resolution. (a) Amicable Resolution. PROVIDING PARTY and
RECEIVING PARTY mutually desire that friendly collaboration will continue
between them. Accordingly, they will try to resolve in an amicable manner all
disagreements and misunderstandings connected with their respective rights and
obligations under this Agreement, including any amendments hereto. In
furtherance thereof, in the event of any dispute or disagreement (a "Dispute")
between PROVIDING PARTY and RECEIVING PARTY in connection with this Agreement
(including, without limitation, the standards of performance, delay of
performance or non-performance of obligations, or payment or non-payment of fees
hereunder), then the Dispute, upon written request of either Party, will be
referred for resolution to the Team Leaders. The Team Leaders will make a good
faith effort to promptly resolve all Disputes referred to them. If the Team
Leaders do not agree to a resolution of a Dispute within fifteen (15) days after
the reference of the matter to them, each Team Leader will refer such matter to
the President of the division implicated by the matter for each of PROVIDING
PARTY and RECEIVING PARTY, which Presidents will have fifteen (15) days to
resolve such Dispute. If the Presidents of the relevant divisions for each of
PROVIDING PARTY and RECEIVING PARTY do not agree to a resolution of such Dispute
within fifteen (15) days after the reference of the matter to them, such
Presidents will refer such matter to the President of each of PROVIDING PARTY
and RECEIVING PARTY for final resolution. Notwithstanding anything to the
contrary in this Section 1.6, any amendment to the terms of this Agreement may
only be effected in accordance with Section 11.10.
(b) Mediation. In the event any Dispute cannot be resolved in a
friendly manner as set forth in Section 1.6(a), the Parties intend that such
Dispute be resolved by mediation. If the Parties are unable to resolve the
Dispute as contemplated by Section 1.6(a), either PROVIDING PARTY or RECEIVING
PARTY may demand mediation of the Dispute by written notice to the other in
which case the two Parties will select a single mediator within ten (10) days
after the demand. Neither Party may unreasonably withhold consent to the
selection of the mediator. Each of PROVIDING PARTY and RECEIVING PARTY will bear
its own costs of mediation but both Parties will share the costs of the mediator
equally.
5
(c) Arbitration. In the event that the Dispute is not resolved in a
friendly manner as set forth in Section 1.6(a) or through mediation pursuant to
Section 1.6(b), the latter within thirty (30) days of the submission of the
Dispute to mediation, either Party involved in the Dispute may submit the
dispute to binding arbitration pursuant to this Section 1.6(c). All Disputes
submitted to arbitration pursuant to this Section 1.6(c) shall be resolved in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, unless the Parties involved mutually agree to utilize an alternate
set of rules, in which event all references herein to the American Arbitration
Association shall be deemed modified accordingly. Expedited rules shall apply
regardless of the amount at issue. Arbitration proceedings hereunder may be
initiated by either Party making a written request to the American Arbitration
Association, together with any appropriate filing fee, at the office of the
American Arbitration Association in Orlando, Florida. All arbitration
proceedings shall be held in the city of Jacksonville, Florida in a location to
be specified by the arbitrators (or any place agreed to by the Parties and the
Arbitrators). The arbitration shall be by a single qualified arbitrator
experienced in the matters at issue, such arbitrator to be mutually agreed upon
by PROVIDING PARTY and RECEIVING PARTY. If PROVIDING PARTY and RECEIVING PARTY
fail to agree on an arbitrator thirty (30) days after notice of commencement of
arbitration, the American Arbitration Association shall, upon the request of any
Party to the dispute or difference, appoint the arbitrator. Any order or
determination of the arbitral tribunal shall be final and binding upon the
Parties to the arbitration as to matters submitted and may be enforced by any
Party to the Dispute in any court having jurisdiction over the subject matter or
over any of the Parties. All costs and expenses incurred in connection with any
such arbitration proceeding (including reasonable attorneys' fees) shall be
borne by the Party incurring such costs. The use of any alternative dispute
resolution procedures hereunder will not be construed under the doctrines of
laches, waiver or estoppel to affect adversely the rights of either Party.
(d) Non-Exclusive Remedy. Nothing in this Section 1.6 will prevent
either PROVIDING PARTY or RECEIVING PARTY from immediately seeking injunctive or
interim relief in the event (A) of any actual or threatened breach of any of the
provisions of Article VIII or (B) that the Dispute relates to, or involves a
claim of, actual or threatened infringement of intellectual property. All such
actions for injunctive or interim relief shall be brought in a court of
competent jurisdiction in accordance with Section 11.6. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Agreement, and further
remedies may be pursued in accordance with Section 1.6(a), Section 1.6(b) and
1.6(c), above.
(e) Commencement of Dispute Resolution Procedure. Notwithstanding
anything to the contrary in this Agreement, PROVIDING PARTY and RECEIVING PARTY,
but none of their respective Subsidiaries, are entitled to commence a dispute
resolution procedure under this Agreement, whether pursuant to Article X, this
Section 1.6 or otherwise, and each Party will cause its respective affiliates
not to commence any dispute resolution procedure other than through such Party
as provided in this Section 1.6(e).
(f) Compensation. RECEIVING PARTY shall continue to make all
payments due and owing under Article III for Transition Services not the subject
of a Dispute and shall not off-set such fees by the amount of fees for
Transition Services that are the subject of the Dispute.
6
1.7 Standard of Services. (a) PROVIDING PARTY shall perform the Transition
Services for RECEIVING PARTY in a professional and competent manner, using at
least standards of performance consistent with its performance of such services
for itself.
(b) During the Term, PROVIDING PARTY shall maintain a disaster
recovery program for the Transition Services substantially consistent with the
disaster recovery program in place for such Transition Services as of the
Effective Date. For the avoidance of doubt, the disaster recovery program
maintained by PROVIDING PARTY will not include a business continuity program.
(c) If RECEIVING PARTY provides PROVIDING PARTY with written notice
("Shortfall Notice") of the occurrence of any Significant Service Shortfall (as
defined below), as determined by RECEIVING PARTY in good faith, PROVIDING PARTY
shall rectify such Significant Service Shortfall as soon as reasonably possible.
For purposes of this Section 1.7(c), a "Significant Service Shortfall" shall be
deemed to have occurred if the timing or quality of performance of Transition
Services provided by PROVIDING PARTY hereunder falls below the standard required
by Section 1.7(a) hereof; provided, that PROVIDING PARTY's obligations under
this Agreement shall be relieved to the extent, and for the duration of, any
force majeure event as set forth in Article V.
1.8 Response Time. PROVIDING PARTY shall respond to and resolve any
problems in connection with the Transition Services for RECEIVING PARTY within a
commercially reasonable period of time, using at least response and proposed
resolution times consistent with its response and resolution of such problems
for itself.
1.9 Ownership of Materials; Results and Proceeds. All data and information
submitted to PROVIDING PARTY by RECEIVING PARTY, in connection with the
Transition Services or the Transition Assistance (as defined in Section 2.3)
(the "RECEIVING PARTY Data"), and all results and proceeds of the Transition
Services and the Transition Assistance with regard to such RECEIVING PARTY Data,
is and will remain, as between the Parties, the property of the RECEIVING PARTY.
The PROVIDING PARTY shall not and shall not permit its Subsidiaries to use the
RECEIVING PARTY Data for any purpose other than to provide the Transition
Services or Transition Assistance.
ARTICLE II
TERM AND TRANSITION ASSISTANCE
2.1 Term. The term (the "Term") of this Agreement shall commence as of the
date hereof and shall continue until expiration of all time periods specified in
Schedule 1.1(a) for each individual Transition Service or as agreed by the
Parties with respect to Special Projects; provided, however, that in no event
shall the Term for any Transition Service or Transition Assistance (a) expire
later than the second anniversary of the Effective Date or (b) continue, with
respect to any entity which ceases to be a Subsidiary of RECEIVING PARTY prior
to the end of the Term, from and after the date that such entity ceases to be a
Subsidiary of RECEIVING PARTY.
7
2.2 Termination. (a) If RECEIVING PARTY is not able to complete its
transition of the Transition Services by the contemplated termination date set
forth on Schedule 1.1(a) or, with respect to Special Projects, agreed upon by
the Parties (so long as such contemplated termination date precedes the date
which is thirty (30) days before the second anniversary of the Effective Date),
then upon written notice at least thirty (30) days prior to the contemplated
termination date, RECEIVING PARTY shall have the right to request and cause
PROVIDING PARTY to provide up to thirty (30) days of additional Transition
Services to RECEIVING PARTY; provided, that RECEIVING PARTY shall pay for all
such additional Transition Services.
(b) If RECEIVING PARTY wishes to terminate a Transition Service
other than in connection with IT infrastructure and data processing services on
a date that is earlier than the contemplated termination date set forth on
Schedule 1.1(a), or with respect to Special Projects, the termination date
agreed upon by the Parties, RECEIVING PARTY shall provide written notice to
PROVIDING PARTY of a proposed termination date for such Transition Service, at
least ninety (90) days prior to such proposed termination date. Upon receipt of
such notice, PROVIDING PARTY shall promptly provide notice to RECEIVING PARTY in
the event that the PROVIDING PARTY believes in good faith that, notwithstanding
the PROVIDING PARTY using its commercially reasonable efforts the requested
termination will have an adverse impact on other Transition Services and the
scope of such adverse impact. In such event, the Parties will resolve the
dispute in accordance with Section 1.6. If PROVIDING PARTY approves the proposed
earlier termination date for a particular Transition Service, then (i) Schedule
1.1(a) shall be deemed amended on the proposed termination date to delete such
Transition Service or (ii) with respect to Special Projects, the agreement of
the Parties for the termination of such Special Projects shall be deemed amended
on the proposed termination date to terminate such Special Project and, for both
(i) and (ii), this Agreement shall be of no further force and effect with
respect to such Transition Service, except as to obligations accrued prior to
the date of discontinuation of such Transition Service.
(c) If RECEIVING PARTY wishes to terminate a Transition Service in
connection with IT infrastructure and data processing services on a date that is
earlier than the contemplated termination date set forth on Schedule 1.1(a),
RECEIVING PARTY shall provide written notice to PROVIDING PARTY of a proposed
termination date for such Transition Service, at least one hundred eighty (180)
days prior to such proposed termination date. Upon receipt of such notice,
PROVIDING PARTY shall promptly provide notice to RECEIVING PARTY in the event
that the PROVIDING PARTY believes in good faith that, notwithstanding the
PROVIDING PARTY using its commercially reasonable efforts the requested
termination will have an adverse impact on other Transition Services and the
scope of such adverse impact. In such event, the Parties will resolve the
dispute in accordance with Section 1.6. If PROVIDING PARTY approves the proposed
earlier termination date for a particular Transition Service, then Schedule
1.1(a) shall be deemed amended on the proposed termination date to delete such
Transition Service and this Agreement shall be of no further force and effect
with respect to such Transition Service, except as to obligations accrued prior
to the date of discontinuation of such Transition Service.
(d) If all Transition Services shall have been terminated under this
Section 2.2 prior to the second anniversary of the Effective Date, then either
Party shall have the right to
8
terminate this Agreement by giving written notice to the other Party, which
termination shall be effective upon delivery as provided in Section 6.1.
2.3 Transition Assistance. In preparation for the discontinuation of any
Transition Service provided under this Agreement, PROVIDING PARTY shall,
consistent with its obligations to provide Transition Services hereunder and
with the cooperation and assistance of RECEIVING PARTY, use commercially
reasonable efforts to provide such knowledge transfer services and to take such
steps as are reasonably required in order to facilitate a smooth and efficient
transition and/or migration of records to the RECEIVING PARTY or its
Subsidiaries (or at RECEIVING PARTY's direction, to a third party) and
responsibilities so as to minimize any disruption of services ("Transition
Assistance"). RECEIVING PARTY shall cooperate with PROVIDING PARTY to allow
PROVIDING PARTY to complete the Transition Assistance as early as is
commercially reasonable to do so. Fees for Transition Assistance shall be
determined in the same way as fees are determined for Special Projects as set
forth in Section 1.1(e).
2.4 Return of Materials. As a Transition Service or any related Transition
Assistance is terminated, each Party will return all materials and property
owned by the other Party, including, without limitation, all RECEIVING PARTY
Data, if any, and materials and property of a proprietary nature involving a
Party or its Subsidiaries relevant to the provision or receipt of that
Transition Service or Transition Assistance and no longer needed regarding the
performance of other Transition Services or other Transition Assistance under
this Agreement, and will do so (and will cause its Subsidiaries to do so) within
thirty (30) days after the applicable termination. Upon the end of the Term,
each Party will return all material and property of a proprietary nature
involving the other Party or its Subsidiaries, in its possession or control (or
the possession or control of an affiliate) within thirty (30) days after the end
of the Term. In addition, upon RECEIVING PARTY's request, PROVIDING PARTY agrees
to provide to RECEIVING PARTY copies of RECEIVING PARTY's Data, files and
records on magnetic media, or such other media as the Parties shall agree upon,
to the extent practicable. PROVIDING PARTY may retain archival copies of
RECEIVING PARTY's Data, files and records.
ARTICLE III
COMPENSATION AND PAYMENT ARRANGEMENTS FOR TRANSITION
SERVICES AND TRANSITION MARKS
3.1 Compensation for Transition Services. In accordance with the payment
terms described in Section 3.2 below, RECEIVING PARTY agrees to pay PROVIDING
PARTY all fees as provided in Sections 1.1 and 2.3 plus any and all
Out-of-Pocket Costs (as defined below) incurred by PROVIDING PARTY.
"Out-of-Pocket Costs" means any fees, costs or other expenses paid by the
PROVIDING PARTY to unaffiliated third parties other than, if applicable,
overhead, compensation paid by such Party or its Subsidiaries to their
respective employees, employee benefits, depreciation, taxes, insurance, rent,
repairs and maintenance, supplies, utilities, administrative expenses, office
supply expenses, facility and utility expenses and intercompany allocated
expenses.
3.2 Payment Terms. The RECEIVING PARTY shall pay by electronic funds
transfer or other method satisfactory to PROVIDING PARTY and RECEIVING PARTY, in
full, the monthly amount invoiced pursuant to Section 3.1 within thirty (30)
days after the date the
9
PROVIDING PARTY's monthly invoice was received. The set up fees, if applicable,
are a one-time charge, which PROVIDING PARTY shall also invoice to RECEIVING
PARTY. The format of such invoice shall include, without limitation, the
applicable Transition Service, the xxxx period, applicable rates units, and such
other information as RECEIVING PARTY may reasonably request. Any amount not
received by the payment due date shall be subject to a late payment charge equal
to the balance overdue times the "prime" rate per annum, as announced in the
most recent edition of the Wall Street Journal, plus five percent (5%),
calculated with respect to the number of calendar days from the payment due date
up to and including the date payment is actually made. Should RECEIVING PARTY
dispute any portion of the amount due on any invoice or require any adjustment
to an invoiced amount, RECEIVING PARTY shall notify PROVIDING PARTY in writing
of the nature and basis of the dispute and/or adjustment as soon as reasonably
possible using, if necessary, the dispute resolution procedures set forth in
Section 1.6. The Parties shall use their reasonable best efforts to resolve the
dispute prior to the payment due date.
3.3 Audit Rights. Upon reasonable advance notice from RECEIVING PARTY,
PROVIDING PARTY shall permit RECEIVING PARTY to perform annual audits of
PROVIDING PARTY's records only with respect to fees and Out-of-Pocket Costs
invoiced pursuant to Section 3.2. Such audits shall be conducted during
PROVIDING PARTY's regular office hours and without disruption to PROVIDING
PARTY's business operations and shall be performed at RECEIVING PARTY's sole
expense.
ARTICLE IV
LIMITATION OF LIABILITY
4.1 THE LIABILITY OF EITHER PARTY FOR A CLAIM ASSERTED BY THE OTHER PARTY
BASED ON BREACH OF ANY COVENANT, AGREEMENT OR UNDERTAKING REQUIRED BY THIS
AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAYABLE BY RECEIVING
PARTY TO PROVIDING PARTY DURING THE PERIOD OF THE BREACH, BUT IN ANY EVENT NOT
TO EXCEED A PERIOD OF ONE (1) YEAR, FOR THE PARTICULAR TRANSITION SERVICE
AFFECTED BY SUCH BREACH UNDER THIS AGREEMENT; PROVIDED, THAT SUCH LIMITATION
SHALL NOT APPLY IN RESPECT OF ANY CLAIMS BASED ON A PARTY'S (i) GROSS
NEGLIGENCE, (ii) WILLFUL MISCONDUCT, (iii) IMPROPER USE OR DISCLOSURE OF
CUSTOMER INFORMATION (iv) VIOLATIONS OF LAW OR (v) INFRINGEMENT OF THE
INTELLECTUAL PROPERTY RIGHTS OF A PERSON OR ENTITY WHO IS NOT A PARTY HERETO OR
THE SUBSIDIARY OF A PARTY HERETO.
4.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGE OF ANY KIND WHATSOEVER; PROVIDED, HOWEVER,
THAT TO THE EXTENT AN INDEMNIFIED PARTY UNDER ARTICLE X IS REQUIRED TO PAY ANY
SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR
LOST PROFITS TO A PERSON OR ENTITY WHO IS NOT A PARTY OR A SUBSIDIARY OF THE
INDEMNIFIED PARTY IN CONNECTION WITH A THIRD PARTY CLAIM, SUCH
10
DAMAGES WILL CONSTITUTE DIRECT DAMAGES AND WILL NOT BE SUBJECT TO THE LIMITATION
SET FORTH IN THIS ARTICLE IV.
ARTICLE V
FORCE MAJEURE
Neither Party shall 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, the Party whose performance is prevented shall give
written notice to the other Party, 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.
ARTICLE VI
NOTICES AND DEMANDS
6.1 Notices. Except as otherwise provided under this Agreement (including
Schedule 1.1(a)), all notices, demands or requests which may be given by any
Party to the other Party shall be in writing and shall be deemed to have been
duly given on the date delivered in person, or sent via telefax, or on the next
business day if sent by overnight courier, or on the date of the third business
day after deposit, postage prepaid, in the United States Mail via Certified Mail
return receipt requested, and addressed as set forth below:
If to RECEIVING PARTY, to:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to PROVIDING PARTY, to:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
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 Section 6.1 and this Section 6.2.
11
ARTICLE VII
REMEDIES
7.1 Remedies Upon Material Breach. In the event of material breach of any
provision of this Agreement by a Party, the non-defaulting Party shall give the
defaulting Party written notice, and:
(a) If such breach is for RECEIVING PARTY's non-payment of an amount
that is not in dispute, the defaulting Party shall cure the breach within 15
calendar days of such notice. If the defaulting Party does not cure such breach
by such date, then the defaulting Party shall pay the non-defaulting Party the
undisputed amount, any interest that has accrued hereunder through the
expiration of the cure period plus an additional amount of interest equal to
four percent (4%) per annum above the "prime rate" as announced in the most
recent edition of the Wall Street Journal. The Parties agree that this rate of
interest constitutes reasonable liquidated damages and not an unenforceable
penalty.
(b) If such breach is for any other material failure to perform in
accordance with this Agreement, the defaulting Party shall cure such breach
within 30 calendar days of the date of such notice. If the defaulting Party does
not cure such breach within such period, then the defaulting Party shall pay the
non-defaulting Party all of the non-defaulting Party's actual damages, subject
to Article IV above.
7.2 Survival Upon Expiration or Termination. The provisions of Section 1.6
(Dispute Resolution), Section 2.4 (Return of Materials), Article IV (Limitation
of Liability), Article VI (Notices and Demands), this Section 7.2, Article VIII
(Confidentiality), Article X (Indemnification) and Article XI (Miscellaneous)
shall survive the termination or expiration of this Agreement unless otherwise
agreed to in writing by both Parties.
ARTICLE VIII
CONFIDENTIALITY
8.1 Confidential Information. Each Party shall use at least the same
standard of care in the protection of Confidential Information of the other
Party as it uses to protect its own confidential or proprietary information;
provided, that such Confidential Information shall be protected in at least a
reasonable manner. For purposes of this Agreement, "Confidential Information"
includes all confidential or proprietary information and documentation of either
Party, including the terms of this Agreement, including with respect to each
Party, all of its software, data, financial information all reports, exhibits
and other documentation prepared by any of its Subsidiaries or affiliates. Each
Party shall use the Confidential Information of the other Party only in
connection with the purposes of this Agreement and shall make such Confidential
Information available only to its employees, subcontractors, or agents having a
"need to know" with respect to such purpose. Each Party shall advise its
respective employees, subcontractors, and agents of such Party's obligations
under this Agreement. The obligations in this Section 8.1 will not restrict
disclosure by a Party pursuant to applicable law, or by order or request of any
court or government agency; provided, that prior to such disclosure the
receiving Party shall (a) immediately give notice to the disclosing Party, (b)
cooperate with the disclosing Party in challenging the right to such access and
(c) only provide such information as is required
12
by law, such order or a final, non-appealable ruling of a court of proper
jurisdiction. Confidential Information of a Party will not be afforded the
protection of this Article VIII if such Confidential Information was (A)
developed by the other Party independently as shown by its written business
records regularly kept, (B) rightfully obtained by the other Party without
restriction from a third party, (C) publicly available other than through the
fault or negligence of the other Party or (D) released by the disclosing Party
without restriction to anyone.
8.2 Work Product Privilege. RECEIVING PARTY represents and PROVIDING PARTY
acknowledges that, in the course of providing Transition Services pursuant to
this Agreement, PROVIDING PARTY may have access to (a) documents, data,
databases or communications that are subject to attorney client privilege and/or
(b) privileged work product prepared by or on behalf of the affiliates of
RECEIVING PARTY in anticipation of litigation with third parties (collectively,
the "Privileged Work Product") and RECEIVING PARTY represents and PROVIDING
PARTY understands that all Privileged Work Product is protected from disclosure
by Rule 26 of the Federal Rules of Civil Procedure and the equivalent rules and
regulations under the law chosen to govern the construction of this Agreement.
RECEIVING PARTY represents and PROVIDING PARTY understands the importance of
maintaining the strict confidentiality of the Privileged Work Product to protect
the attorney client privilege, work product doctrine and other privileges and
rights associated with such Privileged Work Product pursuant to such Rule 26 and
the equivalent rules and regulations under the law chosen to govern the
construction of this Agreement. After PROVIDING PARTY is notified or otherwise
becomes aware that documents, data, database, or communications are Privileged
Work Product, only PROVIDING PARTY personnel for whom such access is necessary
for the purposes of providing Services to RECEIVING PARTY as provided in this
Agreement shall have access to such Privileged Work Product. Should PROVIDING
PARTY ever be notified of any judicial or other proceeding seeking to obtain
access to Privileged Work Product, PROVIDING PARTY shall (A) immediately give
notice to RECEIVING PARTY, (B) cooperate with RECEIVING PARTY in challenging the
right to such access and (C) only provide such information as is required by a
final, non-appealable ruling of a court of proper jurisdiction. RECEIVING PARTY
shall pay all of the cost incurred by PROVIDING PARTY in complying with the
immediately preceding sentence. RECEIVING PARTY has the right and duty to
represent PROVIDING PARTY in such resistance or to select and compensate counsel
to so represent PROVIDING PARTY or to reimburse PROVIDING PARTY for reasonable
attorneys' fees and expenses as such fees and expenses are incurred in resisting
such access. If PROVIDING PARTY is ultimately required, pursuant to an order of
a court of competent jurisdiction, to produce documents, disclose data, or
otherwise act in contravention of the confidentiality obligations imposed in
this Article VIII, or otherwise with respect to maintaining the confidentiality,
proprietary nature, and secrecy of Privileged Work Product, PROVIDING PARTY is
not liable for breach of such obligation to the extent such liability does not
result from failure of PROVIDING PARTY to abide by the terms of this Article
VIII. All Privileged Work Product is the property of RECEIVING PARTY and will be
deemed Confidential Information, except as specifically authorized in this
Agreement or as shall be required by law.
8.3 Unauthorized Acts. Each Party shall (a) notify the other Party
promptly of any unauthorized possession, use, or knowledge of any Confidential
Information by any person which shall become known to it, any attempt by any
person to gain possession of Confidential Information without authorization or
any attempt to use or acquire knowledge of any
13
Confidential Information without authorization (collectively, "Unauthorized
Access"), (b) promptly furnish to the other Party full details of the
Unauthorized Access and use reasonable efforts to assist the other Party in
investigating or preventing the reoccurrence of any Unauthorized Access, (c)
cooperate with the other Party in any litigation and investigation against third
parties deemed necessary by such Party to protect its proprietary rights, and
(d) promptly prevent a reoccurrence of any such Unauthorized Access.
8.4 Publicity. Except as required by law or national stock exchange rule
or as allowed by any Ancillary Agreement, neither Party shall issue any press
release, distribute any advertising, or make any public announcement or
disclosure (a) identifying the other Party by name, trademark or otherwise or
(b) concerning this Agreement without the other Party's prior written consent.
Notwithstanding the foregoing sentence, in the event either Party is required to
issue a press release relating to this Agreement or any of the transactions
contemplated by this Agreement, or by the laws or regulations of any
governmental authority, agency or self-regulatory agency, such Party shall (A)
give notice and a copy of the proposed press release to the other Party as far
in advance as reasonably possible, but in any event not less than five (5) days
prior to publication of such press release and (B) make any changes to such
press release reasonably requested by the other Party. In addition, RECEIVING
PARTY may communicate the existence of the business relationship contemplated by
the terms of this Agreement internally within PROVIDING PARTY's organization and
orally and in writing communicate PROVIDING PARTY's identity as a reference with
potential and existing customers.
8.5 Data Privacy. (a) Where, in connection with this Agreement, PROVIDING
PARTY processes or stores information about a living individual that is held in
automatically processable form (for example in a computerized database) or in a
structured manual filing system ("personal data"), on behalf of any Subsidiaries
of RECEIVING PARTY or their clients, then PROVIDING PARTY shall implement
appropriate measures to protect those personal data against accidental or
unlawful destruction or accidental loss, alteration, unauthorized disclosure or
access.
(b) RECEIVING PARTY may instruct PROVIDING PARTY, where PROVIDING
PARTY processes personal data on behalf of Subsidiaries of RECEIVING PARTY, to
take such steps to preserve data privacy in the processing of those personal
data as are reasonably necessary for the performance of this Agreement.
(c) Subsidiaries of RECEIVING PARTY may, in connection with this
Agreement, collect personal data in relation to PROVIDING PARTY and PROVIDING
PARTY's employees, directors and other officers involved in providing Transition
Services hereunder. Such data may be collected from PROVIDING PARTY, its
employees, its directors, its officers, or from other (for example, published)
sources; and some limited personal data may be collected indirectly at RECEIVING
PARTY's (or Subsidiaries of RECEIVING PARTY's) locations from monitoring devices
or by other means (e.g., telephone logs, closed circuit TV and door entry
systems). Nothing in this Section 8.5(c) obligates PROVIDING PARTY or PROVIDING
PARTY's employees, directors or other officers to provide personal data
requested by RECEIVING PARTY. The Subsidiaries of RECEIVING PARTY may use and
disclose any such data disclosed by PROVIDING PARTY solely for purposes
connected with this Agreement and for the relevant purposes specified in the
data privacy policy of the Subsidiary of
14
RECEIVING PARTY (a copy of which is available on request.) RECEIVING PARTY will
maintain the same level of protection for personal data collected from PROVIDING
PARTY (and PROVIDING PARTY's employees, directors and officers, as appropriate)
as RECEIVING PARTY maintains with its own personal data, and will implement
appropriate administrative, physical and technical measures to protect the
personal data collected from PROVIDING PARTY and PROVIDING PARTY's employees,
directors and other officers against accidental or unlawful destruction or
accidental loss, alternation, unauthorized disclosure or access.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY MADE IN
THIS AGREEMENT, PROVIDING PARTY HAS NOT MADE AND DOES NOT HEREBY MAKE ANY
EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR COVENANTS, STATUTORY OR
OTHERWISE, OF ANY NATURE, INCLUDING WITH RESPECT TO THE WARRANTIES OF
MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR THE RESULTS OBTAINED OF THE CONTINUING BUSINESS. ALL OTHER
REPRESENTATIONS, WARRANTIES, AND COVENANTS, EXPRESS OR IMPLIED, STATUTORY,
COMMON LAW OR OTHERWISE, OF ANY NATURE, INCLUDING WITH RESPECT TO THE WARRANTIES
OF MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR THE RESULTS OBTAINED OF THE CONTINUING BUSINESS ARE HEREBY DISCLAIMED
BY RECEIVING PARTY.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification. (a) Subject to Article IV, RECEIVING PARTY will
indemnify, defend and hold harmless PROVIDING PARTY, each Subsidiary of
PROVIDING PARTY, each of their respective past and present directors, officers,
employees, agents, consultants, advisors, accountants and attorneys
("Representatives"), and each of their respective successors and assigns
(collectively, the "PROVIDING PARTY Indemnified Parties") from and against any
and all Damages (as defined below) incurred or suffered by the PROVIDING PARTY
Indemnified Parties arising or resulting from the provision of Transition
Services hereunder, which Damages shall be reduced by:
(i) Damages caused by PROVIDING PARTY'S negligence; or
(ii) Damages caused by a breach of this Agreement by
PROVIDING PARTY.
"Damages" shall mean, subject to Article IV hereof, all losses, claims, demands,
damages, liabilities, judgments, dues, penalties, assessments, fines (civil,
criminal or administrative), costs, liens, forfeitures, settlements, fees or
expenses (including reasonable attorneys' fees and expenses and any other
expenses reasonably incurred in connection with investigating, prosecuting or
defending a claim or Action).
15
(b) Except as set forth in this Section 10.1(b), PROVIDING PARTY
will have no liability to RECEIVING PARTY for or in connection with any of the
Transition Services rendered hereunder or for any actions or omissions of
PROVIDING PARTY in connection with the provision of any Transition Services
hereunder. Subject to the provisions hereof and subject to Article IV, PROVIDING
PARTY will indemnify, defend and hold harmless RECEIVING PARTY, each Subsidiary
of RECEIVING PARTY, each of their respective past and present Representatives,
and each of their respective successors and assigns (collectively, the
"RECEIVING PARTY Indemnified Parties") from and against any and all Damages
incurred or suffered by the RECEIVING PARTY Indemnified Parties arising or
resulting from either of the following:
(i) any claim that PROVIDING PARTY's use of the software or
other intellectual property used to provide the Transition Services or
Transition Assistance, or any results and proceeds of such Transition
Services or Transition Assistance, infringes, misappropriates or otherwise
violates any United States patent, copyright, trademark, trade secret or
other intellectual property rights; provided, that such intellectual
property indemnity shall not apply to the extent that any such claim
arises out of any modification to such software or other intellectual
property made by RECEIVING PARTY without PROVIDING PARTY's authorization
or participation, or
(ii) PROVIDING PARTY'S gross negligence, willful misconduct,
improper use or disclosure of customer information or violations of law;
provided, that in each of the cases described in subclauses (i) through (ii)
above, the amount of Damages incurred or sustained by RECEIVING PARTY shall be
reduced to the extent such Damages shall have been caused or contributed to by
any action or omission of RECEIVING PARTY in amounts equal to RECEIVING PARTY's
equitable share of such Damages determined in accordance with its relative
culpability for such Damages or the relative fault of RECEIVING PARTY or any of
its Subsidiaries (or where FNIS is a RECEIVING PARTY, any member of the FIS
Group).
10.2 Indemnification Procedures.
(a) Claim Notice. A Party that seeks indemnity under this Article X
(an "Indemnified Party") will give written notice (a "Claim Notice") to the
Party from whom indemnification is sought (an "Indemnifying Party"), whether the
Damages sought arise from matters solely between the Parties or from Third Party
Claims. The Claim Notice must contain (i) a description and, if known, estimated
amount (the "Claimed Amount") of any Damages incurred or reasonably expected to
be incurred by the Indemnified Party, (ii) a reasonable explanation of the basis
for the Claim Notice to the extent of facts then known by the Indemnified Party,
and (iii) a demand for payment of those Damages. No delay or deficiency on the
part of the Indemnified Party in so notifying the Indemnifying Party will
relieve the Indemnifying Party of any liability for Damages or obligation
hereunder except to the extent of any Damages caused by or arising out of such
failure.
(b) Response to Notice of Claim. Within thirty (30) days after
delivery of a Claim Notice, the Indemnifying Party will deliver to the
Indemnified Party a written response in
16
which the Indemnifying Party will either: (i) agree that the Indemnified Party
is entitled to receive all of the Claimed Amount and, in which case, the
Indemnifying Party will pay the Claimed Amount in accordance with a payment and
distribution method reasonably acceptable to the Indemnified Party; or (ii)
dispute that the Indemnified Party is entitled to receive all or any portion of
the Claimed Amount, in which case, the Parties will resort to the dispute
resolution procedures set forth in Section 1.6.
(c) Contested Claims. In the event that the Indemnifying Party
disputes the Claimed Amount, as soon as practicable but in no event later than
ten (10) days after the receipt of the notice referenced in Section 10.2(b)(ii)
hereof, the Parties will begin the process to resolve the matter in accordance
with the dispute resolution provisions of Section 1.6 hereof. Upon ultimate
resolution thereof, the Parties will take such actions as are reasonably
necessary to comply with such agreement or instructions.
(d) Third Party Claims.
(i) In the event that the Indemnified Party receives notice or
otherwise learns of the assertion by a person or entity who is not a Party
hereto or a Subsidiary of a Party hereto of any claim or the commencement
of any action (a "Third-Party Claim") with respect to which the
Indemnifying Party may be obligated to provide indemnification under this
Article X, the Indemnified Party will give written notification to the
Indemnifying Party of the Third-Party Claim. Such notification will be
given within fifteen (15) days after receipt by the Indemnified Party of
notice of such Third-Party Claim, will be accompanied by reasonable
supporting documentation submitted by such third party (to the extent then
in the possession of the Indemnified Party) and will describe in
reasonable detail (to the extent known by the Indemnified Party) the facts
constituting the basis for such Third-Party Claim and the amount of the
claimed Damages; provided, however, that no delay or deficiency on the
part of the Indemnified Party in so notifying the Indemnifying Party will
relieve the Indemnifying Party of any liability for Damages or obligation
hereunder except to the extent of any Damages caused by or arising out of
such failure. Within twenty (20) days after delivery of such notification,
the Indemnifying Party may, upon written notice thereof to the Indemnified
Party, assume control of the defense of such Third-Party Claim with
counsel reasonably satisfactory to the Indemnified Party. During any
period in which the Indemnifying Party has not so assumed control of such
defense, the Indemnified Party will control such defense.
(ii) The Party not controlling such defense (the
"Non-controlling Party") may participate therein at its own expense.
The Party controlling such defense (the "Controlling Party") will keep the
Non-controlling Party reasonably advised of the status of such Third-Party Claim
and the defense thereof and will consider in good faith recommendations made by
the Non-controlling Party with respect thereto. The Non-controlling Party will
furnish the Controlling Party with such Information as it may have with respect
to such Third-Party Claim (including copies of any summons, complaint or other
pleading which may have been served on such Party and any written claim, demand,
17
invoice, billing or other document evidencing or asserting the same) and will
otherwise cooperate with and assist the Controlling Party in the defense of such
Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement
of, or the entry of any judgment arising from, any such Third-Party Claim
without the prior written consent of the Indemnified Party, which consent
will not be unreasonably withheld or delayed; provided, however, that the
consent of the Indemnified Party will not be required if (A) the
Indemnifying Party agrees in writing to pay any amounts payable pursuant
to such settlement or judgment, and (B) such settlement or judgment
includes a full, complete and unconditional release of the Indemnified
Party from further Liability. The Indemnified Party will not agree to any
settlement of, or the entry of any judgment arising from, any such
Third-Party Claim without the prior written consent of the Indemnifying
Party, which consent will not be unreasonably withheld or delayed.
ARTICLE XI
MISCELLANEOUS
11.1 Relationship of the Parties. The Parties declare and agree that each
Party is engaged in a business that is independent from that of the other Party
and each Party shall perform its obligations as an independent contractor. It is
expressly understood and agreed that RECEIVING PARTY and PROVIDING PARTY are not
partners, and nothing contained herein is intended to create an agency
relationship or a partnership or joint venture with respect to the Transition
Services. Neither Party is an agent of the other and neither Party has any
authority to represent or bind the other Party as to any matters, except as
authorized herein or in writing by such other Party from time to time.
11.2 Employees. (a) PROVIDING PARTY shall be solely responsible for
payment of compensation to its employees and, as between the Parties, for its
Subsidiaries' employees and for any injury to them in the course of their
employment. PROVIDING PARTY shall assume full responsibility for payment of all
federal, state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws with respect to such
persons.
(b) RECEIVING PARTY shall be solely responsible for payment of
compensation to its employees and, as between the Parties, for its Subsidiaries'
employees and for any injury to them in the course of their employment.
RECEIVING PARTY shall assume full responsibility for payment of all federal,
state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax laws with respect to such persons.
11.3 Assignment. Neither Party may, in connection with a sale of an asset
to which one or more of the Transition Services relate, assign, transfer or
convey any right, obligation or duty, in whole or in part, or of any other
interest under this Agreement relating to such Transition Services without the
prior written consent of the other Party. All obligations and duties of a Party
under this Agreement shall be binding on all successors in interest and
permitted assigns of such Party. Each Party may use its Subsidiaries or
subcontractors to perform the Transition
18
Services; provided, that such use shall not relieve such assigning Party of
liability for its responsibilities and obligations.
11.4 Severability. In the event that any one or more of the provisions
contained herein shall for any reason be held to be unenforceable in any respect
under law, such unenforceability shall not affect any other provision of this
Agreement, and this Agreement shall be construed as if such unenforceable
provision or provisions had never been contained herein.
11.5 Third Party Beneficiaries. The provisions of this Agreement are for
the benefit of the Parties and their affiliates and not for any other person.
However, 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.
11.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to such
State's laws and principles regarding the conflict of laws. Subject to Section
1.6, if any Dispute arises out of or in connection with this Agreement, except
as expressly contemplated by another provision of this Agreement, the Parties
irrevocably (a) consent and submit to the exclusive jurisdiction of federal and
state courts located in Jacksonville, Florida, (b) waive any objection to that
choice of forum based on venue or to the effect that the forum is not convenient
and (c) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR
ADJUDICATION BY JURY.
11.7 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.
11.8 Construction. The headings and numbering of articles, sections and
paragraphs 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 Article or 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.
11.9 Entire Agreement. This Agreement, including all attachments,
constitutes the entire Agreement between the Parties with respect to the subject
matter hereof, and supersedes all prior oral or written agreements,
representations, statements, negotiations, understandings, proposals and
undertakings, with respect to the subject matter hereof.
11.10 Amendments and Waivers. The Parties may amend this Agreement only by
a written agreement signed by each Party and that identifies itself as an
amendment to this Agreement. 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 the Party against whom
such waiver or consent is claimed. 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.
19
11.11 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. Unless otherwise provided for under 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.
11.12 Taxes. All charges and fees to be paid to PROVIDING PARTY under this
Agreement are exclusive of any applicable taxes required by law to be collected
from the RECEIVING PARTY (including, without limitation, withholding, sales,
use, excise, or services tax, which may be assessed on the provision of
Transition Services). In the event that a withholding, sales, use, excise, or
services tax is assessed on the provision of any of the Transition Services
under this Agreement, RECEIVING PARTY will pay directly, reimburse or indemnify
PROVIDING PARTY for such tax, plus any applicable interest and penalties. 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 resale certificate, information regarding
out-of-state use of materials, services or sale, and other exemption
certificates or information reasonably requested by either Party.
11.13 Changes in Law. PROVIDING PARTY's obligations to provide Transition
Services hereunder are to provide such Transition Services in accordance with
applicable laws as in effect on the date of this Agreement. Each Party reserves
the right to take all actions in order to ensure that the Transition Services
and Transition Assistance are provided in accordance with any applicable laws.
[Signature page to follow.]
20
IN WITNESS WHEREOF, the Parties, acting through their authorized officers,
have caused this Agreement to be duly executed and delivered as of the date
first above written.
RECEIVING PARTY:
Fidelity National Information Services, Inc.
By:__________________
Name:________________
Title:_______________
PROVIDING PARTY:
Fidelity National Financial, Inc.
By:__________________
Name:________________
Title:_______________
21
