FIS REVERSE CORPORATE AND TRANSITIONAL SERVICES AGREEMENT
Exhibit 99.3
This Reverse Corporate and Transitional Services Agreement (this “Agreement”) is dated as of
July 2, 2008, by and between LENDER PROCESSING SERVICES, INC., a Delaware corporation (“LPS” or
“PROVIDING PARTY”), and FIDELITY NATIONAL INFORMATION SERVICES, INC., a Georgia corporation (“FIS”
or “RECEIVING PARTY”). LPS and FIS shall be referred to together in this Agreement as the
“Parties” and individually as a “Party.”
WHEREAS, in connection with the consummation of the transactions (the “Transactions”)
contemplated by that certain Contribution and Distribution Agreement dated as of June 13, 2008 (the
“Contribution Agreement”), between FIS and LPS, the Parties wish to enter into a separate agreement
for the provision of certain services by FIS and its Subsidiaries to LPS and its Subsidiaries; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Contribution Agreement;
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:
ARTICLE I
CORPORATE SERVICES
CORPORATE SERVICES
1.1 Corporate Services. This Agreement sets forth the terms and conditions for the
provision by PROVIDING PARTY to RECEIVING PARTY of various corporate services and products, as more
fully 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
“Corporate Services”).
(a) Scheduled Services. PROVIDING PARTY, through its Subsidiaries and Affiliates
(each as defined below), 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 date on which the Distribution occurs (the
“Effective Date”), with such services to be provided to RECEIVING PARTY’s Subsidiaries 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). For
purposes of this Agreement, “Subsidiary” means, with respect to either Party, any corporation,
partnership, company or other entity of which such Party controls or owns, directly or indirectly,
more than fifty percent (50%) of the stock or other equity interest entitled to vote on the
election of the members to the board of directors or similar governing body, or otherwise has the
power to elect a majority of the members to the board of directors or similar governing body; and
“Affiliate” means, with respect to either Party, any corporation, partnership, company, or other
entity that directly, or indirectly through one or more
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intermediaries, controls, is controlled by, or is under common control with, such specified
Party. As used herein, “control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such entity, whether through
ownership of voting securities or other interests, by contract or otherwise.
(b) Omitted Services. PROVIDING PARTY, through its Subsidiaries and Affiliates, 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 on or before 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 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 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 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; provided, that payment of such
fees by 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 PROVIDING PARTY or its Subsidiaries or Affiliates 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 or Affiliates for such Omitted Services
immediately prior to the Effective Date, the Parties shall negotiate in good faith a fee to be
based on the cost of providing such Omitted Services, which shall in no event be less than the
Default Fee (as defined below); provided, that payment of such fees by RECEIVING PARTY for
the Omitted Services provided hereunder by PROVIDING PARTY 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 such Omitted Services provided hereunder by
PROVIDING PARTY or its Subsidiaries or Affiliates prior to the Effective Date. The “Default Fee”
means an amount equal to one hundred fifty percent (150%) of the salary of each full-time employee,
on an hourly basis, who provides the applicable Corporate Service or Transition Assistance (as
defined in Section 2.3).
(c) Resumed Services. At RECEIVING PARTY’s written request, PROVIDING PARTY, through
its Subsidiaries and Affiliates, 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 Corporate
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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) Special Projects. At RECEIVING PARTY’s written request, PROVIDING PARTY, through
its Subsidiaries and Affiliates, and their respective employees, agents or contractors, shall use
commercially reasonable efforts to provide additional corporate 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 costs applicable for such Special
Project and the expected time frame for completion. PROVIDING PARTY shall respond promptly to such
written request, but in no event later than twenty (20) days, with a written estimate of the cost
of providing such Special Project and the expected time frame for completion (the “Cost Estimate”).
If RECEIVING PARTY provides written approval of the Cost Estimate within ten (10) days after
PROVIDING PARTY delivers the Cost Estimate, then 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 and prior to providing the Cost Estimate, it has
determined and notified RECEIVING PARTY in writing that (i) it would not be feasible to provide
such Special Project, given 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.
1.2 Provision of Corporate Services; Excused Performance.
(a) Migration of Services. To the extent commercially reasonable, the Parties will
work together and begin the process of migrating the Corporate Services from PROVIDING PARTY to
RECEIVING PARTY or one or more of its Subsidiaries or Affiliates or to a third party (at RECEIVING
PARTY’s direction) such that the completion of the migration of the Corporate Services from
PROVIDING PARTY to RECEIVING PARTY, one or more of its Subsidiaries or Affiliates 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 Corporate Services through the expiration of the Term, except (i)
as automatically modified by earlier termination of a Corporate Service by RECEIVING PARTY in
accordance with this Agreement, (ii) for Corporate Services 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) Performance Excused. All obligations of PROVIDING PARTY with respect to any one
or more individual Corporate 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 or any of its
Subsidiaries to meet their obligations (including any performance) under any other Related Party
Agreement (as defined in the Contribution Agreement).
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1.3 Third Party Vendors; Consents.
(a) Third Party Consents. 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 Corporate 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
Corporate 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 Corporate
Services or (ii) notifies PROVIDING PARTY of its desire or plan to terminate its contractual
relationship with PROVIDING PARTY or (iii) ceases providing the products or services associated
with the Corporate 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) No Transfer of Software. 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 or Affiliates in connection with the provision of the Corporate Services
or at the conclusion of the Term.
1.4 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
president (or similar position) 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 of the relevant divisions 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 1.4, any amendment to the terms of this Agreement may only be effected in
accordance with Section 11.10.
(b) Arbitration. In the event that the Dispute is not resolved in a friendly manner
as set forth in Section 1.4(a), either Party involved in the Dispute may submit the dispute
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to binding arbitration pursuant to this Section 1.4(b). All Disputes submitted to
arbitration pursuant to this Section 1.4(b) 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 within thirty (30) days after notice of
commencement of arbitration, the American Arbitration Association shall, upon the request of either
Party to the Dispute, 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 either Party to the Dispute in any court having jurisdiction over the subject matter or
over either Party. 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.
(c) Non-Exclusive Remedy. Nothing in this Section 1.4 will prevent either
PROVIDING PARTY or RECEIVING PARTY from immediately seeking injunctive or interim relief in the
event (i) of any actual or threatened breach of any of the provisions of Article VIII or
(ii) 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 1.4(a) and Section 1.4(b) above.
(d) Commencement of Dispute Resolution Procedure. Notwithstanding anything to the
contrary in this Agreement, PROVIDING PARTY and RECEIVING PARTY, but none of their respective
Subsidiaries or Affiliates, are entitled to commence a dispute resolution procedure under this
Agreement, whether pursuant to this Section 1.4 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 1.4(d).
(e) Compensation. RECEIVING PARTY shall continue to make all payments due and owing
under Article III for Corporate Services not the subject of a Dispute and shall not off-set
such fees by the amount of fees for Corporate Services that are the subject of the Dispute.
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1.5 Standard of Services.
(a) General Standard. PROVIDING PARTY shall perform the Corporate Services for
RECEIVING PARTY in a professional and competent manner, using standards of performance consistent
with its performance of such services for itself.
(b) Disaster Recovery. During the Term, PROVIDING PARTY shall maintain a disaster
recovery program for the Corporate Services substantially consistent with the disaster recovery
program in place for such Corporate 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) Shortfall in Services. 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
1.5(c), a “Significant Service Shortfall” shall be deemed to have occurred if the timing or
quality of performance of Corporate Services provided by PROVIDING PARTY hereunder falls below the
standard required by Section 1.5(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.
1.6 Response Time. PROVIDING PARTY shall respond to and resolve any problems in
connection with the Corporate Services for RECEIVING PARTY within a commercially reasonable period
of time, using response and proposed resolution times consistent with its response and resolution
of such problems for itself.
1.7 Ownership of Materials; Results and Proceeds. All data and information submitted
to PROVIDING PARTY by RECEIVING PARTY, in connection with the Corporate Services or the Transition
Assistance (as defined in Section 2.3) (the “RECEIVING PARTY Data”), and all results and
proceeds of the Corporate Services and the Transition Assistance with regard to the RECEIVING PARTY
Data, is and will remain, as between the Parties, the property of RECEIVING PARTY. PROVIDING PARTY
shall not and shall not permit its Subsidiaries or Affiliates to use RECEIVING PARTY Data for any
purpose other than to provide the Corporate Services or Transition Assistance.
ARTICLE II
TERM AND TRANSITION ASSISTANCE
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 the earliest of:
(i) the date on which the last of the Scheduled Services under this Agreement
is terminated,
(ii) the date on which this Agreement is terminated by mutual agreement of the
Parties, or
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(iii) the second anniversary of the date of this Agreement,
whichever is earlier (in any case, the “Termination Date”); provided, however,
that, with respect to any entity that ceases to be a Subsidiary of RECEIVING PARTY prior to the
Termination Date, the Term with respect to such entity shall terminate effective as of the date
that such entity ceases to be a Subsidiary of RECEIVING PARTY.
2.2 Termination.
(a) 30 Day Extension. If RECEIVING PARTY is not able to complete its transition of
the Corporate Services by the Termination Date, then upon written notice provided to PROVIDING
PARTY at least thirty (30) days prior to the Termination Date, RECEIVING PARTY shall have the right
to request and cause PROVIDING PARTY to provide up to thirty (30) days of additional Corporate
Services to RECEIVING PARTY; provided, that RECEIVING PARTY shall pay for all such
additional Corporate Services.
(b) Early Termination. If RECEIVING PARTY wishes to terminate a Corporate Service (or
a portion thereof) on a date that is earlier than the Termination Date, RECEIVING PARTY shall
provide written notice (the “Termination Notice”) to PROVIDING PARTY of a proposed termination date
for such Corporate Service (or portion thereof), 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 (the “Termination Dispute Notice”) in the event that PROVIDING PARTY believes in
good faith that, notwithstanding PROVIDING PARTY using its commercially reasonable efforts, the
requested termination will have a material adverse impact on other Corporate Services and the scope
of such adverse impact. In such event, the Parties will resolve the dispute in accordance with
Section 1.4. If PROVIDING PARTY does not provide the Termination Dispute Notice, based on
the standards set forth above, within ten (10) days of the date on which the Termination Notice was
received, then, effective on the termination date proposed by RECEIVING PARTY in its Termination
Notice, such Corporate Service (or portion thereof) shall be discontinued (thereafter, a
“Discontinued Corporate Service”) and deemed deleted from the Scheduled Services to be provided
hereunder and thereafter, this Agreement shall be of no further force and effect with respect to
the Discontinued Corporate Service (or portion thereof), except as to obligations accrued prior to
the date of discontinuation of such Corporate Service (or portion thereof). Upon the occurrence of
any Discontinued Corporate Service, the Parties shall promptly update Schedule 1.1(a) to
reflect the discontinuation, and the Corporate Service Fees shall be adjusted in accordance
therewith and the provisions of Article III. Notwithstanding anything to the contrary
contained herein, at any time that employees of PROVIDING PARTY or its Subsidiaries or Affiliates
move to a department within RECEIVING PARTY or its Subsidiaries or Affiliates (an “Employee
Shift”), a proportional portion of the relevant Corporate Service shall be deemed automatically
terminated. If a Corporate Service, or portion thereof, is terminated as a result of an Employee
Shift, then such termination shall take effect as of the date of the Employee Shift, and the
adjustment in Corporate Service Fees shall also take effect as of the date of the Employee Shift.
(c) Termination of All Services. If all Corporate Services shall have been terminated
under this Section 2.2 prior to the expiration of the Term, then either Party shall have
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the right to 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 Corporate
Service provided under this Agreement, PROVIDING PARTY shall, consistent with its obligations to
provide Corporate 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 RECEIVING PARTY or its Subsidiaries or Affiliates (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 any Transition Assistance shall be determined in accordance with the calculation formula and
methods applicable to the Scheduled Services that are most similar in nature to the Transition
Assistance being so provided, as set forth on the applicable Section of Schedule 1.1(a).
2.4 Return of Materials. As a Corporate Service or 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 or Affiliates relevant to the provision or receipt of
that Corporate Service or Transition Assistance and no longer needed regarding the performance of
other Corporate Services or other Transition Assistance under this Agreement, and will do so (and
will cause its Subsidiaries and Affiliates 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 as a result of the Services provided hereunder) 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 PAYMENTS FOR CORPORATE SERVICES
COMPENSATION AND PAYMENTS FOR CORPORATE SERVICES
3.1 Compensation for Corporate Services.
(a) Fees Generally. In accordance with the payment terms described in Sections
3.2 and 3.3 below, RECEIVING PARTY agrees to timely pay PROVIDING PARTY, as compensation for
the Corporate Services provided hereunder, all fees as contemplated in Section 1.1 (the
“Corporate Service Fees”) and in Section 2.3 (the “Transition Assistance Fees”).
(b) Out of Pocket Costs. Without limiting the foregoing, the Parties acknowledge that
RECEIVING PARTY is also obligated to pay, or reimburse PROVIDING PARTY for its payment of, all Out
of Pocket Costs (as defined below); provided, however, that the incurrence of any
liability by RECEIVING PARTY or any of its Subsidiaries for any New
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Out of Pocket Cost (as defined below) that requires the payment by RECEIVING PARTY or one of
its Subsidiaries of more than $200,000, on an annualized basis, shall require either (i) the prior
approval of a full-time employee of RECEIVING PARTY or one of its Subsidiaries, or (ii) the
subsequent approval of the chief accounting officer of RECEIVING PARTY (or his/her designee) after
his/her receipt of the Monthly Summary Statement (as defined in Section 3.2) provided to
RECEIVING PARTY for the calendar month in which the New Out of Pocket Cost was incurred or paid by
PROVIDING PARTY on behalf of RECEIVING PARTY. If (x) PROVIDING PARTY has not obtained the prior
approval of a full-time employee of RECEIVING PARTY or one of its Subsidiaries before incurring or
paying any New Out of Pocket Cost that exceeds $200,000 on an annualized basis, and (y) after
receiving and reviewing the applicable Monthly Summary Statement, the chief accounting officer of
RECEIVING PARTY (or his/her designee) has not expressly approved the New Out of Pocket Cost in
question, then RECEIVING PARTY shall be entitled to dispute the New Out of Pocket Cost until the
close of the next audit cycle, provided that if PROVIDING PARTY disagrees with RECEIVING
PARTY’s dispute of the New Out of Pocket Cost, then PROVIDING PARTY shall be entitled to exercise
its rights under the dispute resolution provisions set forth in Section 1.4. For purposes
hereof, the term “Out of Pocket Costs” means all fees, costs or other expenses payable by RECEIVING
PARTY or its Subsidiaries to third parties that are not Affiliates of PROVIDING PARTY in connection
with the Corporate Services provided hereunder; and the term “New Out of Pocket Cost” means any Out
of Pocket Cost incurred after the Effective Date that is not a continuation of services provided to
RECEIVING PARTY or one of its Subsidiaries in the ordinary course of business consistent with past
practices and for which RECEIVING PARTY had paid or reimbursed a portion thereof prior to the
Effective Date.
3.2 Monthly Summary Statements. Within 30 days after the end of each calendar month,
PROVIDING PARTY shall prepare and deliver to the chief accounting officer (or his/her designee) of
RECEIVING PARTY a monthly summary statement (each a “Monthly Summary Statement”) setting forth all
of the costs owing by the RECEIVING PARTY to the PROVIDING PARTY, including all Corporate Service
Fees, Transition Assistance Fees, Out of Pocket Costs, as calculated in accordance with Section
3.1 and Schedule 1.1(a), and any other charges incurred by, and cost allocations made
by, PROVIDING PARTY for or on behalf of RECEIVING PARTY for Corporate Services pursuant to this
Agreement. For sake of clarification, the Parties acknowledge that unless and until the Parties
agree otherwise, the Monthly Summary Statements required hereunder shall including the applicable
monthly costs, fees and expenses owing by RECEIVING PARTY to PROVIDING PARTY for all Related Party
Agreements, as well as all other agreements between RECEIVING PARTY and PROVIDING PARTY designated
to be included by each of RECEIVING PARTY and PROVIDING PARTY, including the Master Accounting and
Billing Agreement between FIS and LPS, and the provisions of this Article III should be
read and interpreted in conjunction therewith. The specific form of the Monthly Summary Statement
shall be as agreed to between the parties from time to time, acting with commercial reasonableness.
(a) Monthly Amounts Payable. The Monthly Summary Statements shall be reviewed,
approved and/or disputed in accordance with the terms and provisions set forth in Schedule
3.3, and amounts owing thereunder shall be paid in accordance with the terms and provisions set
forth in Schedule 3.3.
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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 amounts invoiced and Out of Pocket Costs invoiced pursuant to this Article III.
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
LIMITATION OF LIABILITY
4.1 LIMITATION OF LIABILITY. 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 ONE (1) YEAR PERIOD PRECEDING THE BREACH FOR THE PARTICULAR CORPORATE 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
OR AFFILIATE OF A PARTY HERETO.
4.2 DAMAGES. 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 OR AFFILIATE OF THE INDEMNIFIED PARTY IN CONNECTION WITH
A THIRD PARTY CLAIM, SUCH DAMAGES WILL CONSTITUTE DIRECT DAMAGES AND WILL NOT BE SUBJECT TO THE
LIMITATION SET FORTH IN THIS ARTICLE IV.
ARTICLE V
FORCE MAJEURE
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, hurricanes,
tornadoes, 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.
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ARTICLE VI
NOTICES AND DEMANDS
NOTICES AND DEMANDS
6.1 Notices. Except as otherwise provided under this Agreement (including
Schedule 1.1(a)), all notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be deemed given if (i) delivered personally, (ii) sent
by a nationally-recognized overnight courier (providing proof of delivery) or (iii) sent by
facsimile or electronic transmission (including email), provided that receipt of such facsimile or
electronic transmission is immediately confirmed by telephone), in each case to the parties at the
following addresses, facsimile numbers or email (or as shall be specified by like notice):
If to PROVIDING PARTY, to:
Lender Processing Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Email: xxxx.xxxxxxx@xxxxxx.xxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Email: xxxx.xxxxxxx@xxxxxx.xxx
If to RECEIVING PARTY, to:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Email: xxx.xxxx@xxxx.xxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Email: xxx.xxxx@xxxx.xxx
Any notice, request or other communication given as provided above shall be deemed given to the
receiving party (i) upon actual receipt, if delivered personally; (ii) on the next Business Day
after deposit with an overnight courier, if sent by a nationally-recognized overnight courier; or
(iii) upon confirmation of successful transmission if sent by facsimile or email (provided
that if given by facsimile or email, such notice, request or other communication shall be followed
up within one Business Day by dispatch pursuant to one of the other methods described herein).
ARTICLE VII
REMEDIES
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 thirty (30) 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
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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 “Money Rates”
section of the most recent edition of the Eastern Edition of The Wall Street Journal, which
interest rate shall change as and when the “prime rate” changes. 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 thirty (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 1.4
(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
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 Party making
such disclosure shall (a) immediately give notice to the other Party, (b) cooperate with the other
Party in challenging the right to such access and (c) only provide such information as is required
by law, court 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 Party that owns or has the rights to the
Confidential Information without restriction to anyone.
8.2 Work Product Privilege. RECEIVING PARTY represents and PROVIDING PARTY
acknowledges that, in the course of providing Corporate Services pursuant to this
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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 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) use commercially reasonable efforts to 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 Related Party Agreement, neither Party shall issue any press release, distribute
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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 and shall use such
data solely for purposes of carrying out its obligations under this Agreement.
(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 Corporate Services hereunder. Such Personal 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
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.
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ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
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
PROVIDING PARTY.
ARTICLE X
INDEMNIFICATION
INDEMNIFICATION
10.1 Indemnification.
(a) Subject to Article IV, RECEIVING PARTY will indemnify, defend and hold harmless
PROVIDING PARTY, each Subsidiary and Affiliate 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 Corporate Services hereunder, which Damages shall be reduced to the extent of:
(i) Damages caused or contributed to by PROVIDING PARTY’s negligence, willful
misconduct or violation or law; or
(ii) Damages caused or contributed to by a breach of this Agreement by
PROVIDING PARTY.
“Damages” means, 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).
(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 Corporate Services rendered
hereunder or for any actions or omissions of PROVIDING PARTY in
xv
connection with the provision of any Corporate Services hereunder. Subject to the provisions
hereof and subject to Article IV, PROVIDING PARTY will indemnify, defend and hold harmless
RECEIVING PARTY, each Subsidiary and Affiliate 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 Corporate Services or Transition Assistance, or any
results and proceeds of such Corporate 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 its
Subsidiaries.
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 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
xvi
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 1.4.
(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 1.4
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 or
Affiliate 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.
(iii) 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, invoice,
billing or other document evidencing or
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asserting the same) and will otherwise cooperate with and assist the
Controlling Party in the defense of such Third-Party Claim.
(iv) 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
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 Corporate 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 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
Corporate Services without the prior written consent of the other Party, including any assignment,
transfer or conveyance in connection with a sale of an asset to which one or more of the Corporate
Services relate. 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
xviii
Subsidiaries or Affiliates or subcontractors to perform the Corporate 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 1.4, 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.
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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 RECEIVING PARTY
(including, without limitation, withholding, sales, use, excise, or services tax, which may be
assessed on the provision of Corporate Services). In the event that a withholding, sales, use,
excise, or services tax is assessed on the provision of any of the Corporate 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 Corporate Services
hereunder are to provide such Corporate 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 Corporate Services and Transition Assistance are provided in accordance with any
applicable laws.
11.14 Effectiveness. Notwithstanding the date hereof, this Agreement shall become
effective as of the date of the Distribution, as more fully described in the Contribution
Agreement.
[signature page to follow]
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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.
| PROVIDING PARTY: Lender Processing Services, Inc. |
||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxxx | ||||
| President and Chief Executive Officer | ||||
| RECEIVING PARTY: Fidelity National Information Services, Inc. |
||||
| By | /s/ Xxx X. Xxxxxxx | |||
| Xxx X. Xxxxxxx | ||||
| President and Chief Executive Officer | ||||
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