Exhibit 10.11
TITLE PLANT MAINTENANCE AGREEMENT
This TITLE PLANT MAINTENANCE AGREEMENT (this "Agreement") dated as of _________,
2004 is entered into between PROPERTY INSIGHT, LLC, a California limited
liability company with its principal place of business at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000 ("PI"); SECURITY UNION TITLE INSURANCE COMPANY, a
California-domiciled title insurance company with its principal place of
business at 0000 Xxxxx Xxxx, Xxxxx Xxxxxxx, XX 00000 ("SUTIC"); CHICAGO TITLE
INSURANCE COMPANY, a Missouri-domiciled title insurance company with its
principal place of business at 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX
00000-0000 ("CTIC"); and TICOR TITLE INSURANCE COMPANY, a California-domiciled
title insurance company with its principal place of business at 0000 Xxxxx Xxxx,
Xxxxx Xxxxxxx, XX 00000 ("Ticor"; together with SUTIC and CTIC, each a "Company"
and collectively, the "Companies").
W i t n e s s e t h:
WHEREAS, each of the Companies is a direct or indirect subsidiary of
Fidelity National Financial, Inc., a Delaware corporation ("FNF"); and
WHEREAS, each of the Companies is engaged in the title insurance
business, including searching and examining titles to real property, and issuing
or causing to be issued policies of title insurance insuring interests in real
property; and
WHEREAS, in connection with its respective business, each of the
Companies is the owner of one or more 'title plants', with each title plant
consisting of a collection of data, images, and/or indices, including indices of
land records and copies of Official Records and other materials and databases,
relating to a particular geographic area; and
WHEREAS, certain of the title plants owned by each of the Companies is
more particularly described on the applicable schedule relating to such title
plant attached to EXHIBIT B (with respect to each Company, such Company's "Title
Plants", and collectively the "FNF Title Plants"); and
WHEREAS, the Companies desire to retain PI to provide the management,
maintenance and updating services (as more fully described below and in the
schedules to EXHIBIT B) for each of the FNF Title Plants, and PI is willing to
provide such services, subject to the terms and conditions set forth herein, as
of the Effective Date (as defined in Section 10.12); and
WHEREAS, simultaneous with the effectiveness of this Agreement, PI will
also enter into a Master Title Plant Access Agreement (the "Title Plant Access
Agreement") with Rocky Mountain Support Services, Inc., an Arizona corporation
with its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000 ("RMSS") and a direct or indirect subsidiary of FNF, pursuant to which
RMSS will obtain access from PI to the updated FNF Title Plants, on behalf of
the Companies as well as other direct or indirect subsidiaries of FNF who are
not
owners of any FNF Title Plants but who desire access to one or more of the FNF
Title Plants from time to time (collectively, the "FNF Affiliates"); and
WHEREAS, also simultaneous with the effectiveness of this Agreement,
RMSS will enter into a Cost Sharing Agreement with the FNF Affiliates (including
the Companies), pursuant to which RMSS will distribute the costs and fees
charged by PI to RMSS for the title plant access of each of the FNF Affiliates
under the Title Plant Access Agreement, with each FNF Affiliate's share to be
based on its title plant access and usage; and
WHEREAS, as permitted by the terms and conditions of this Agreement, it
is anticipated that from time to time PI will enter into title plant access
agreements with third parties who desire to access one or more of the FNF Title
Plants (including competitors of the Companies); and
WHEREAS, PI is a direct or indirect subsidiary of Fidelity National
Information Services, a Delaware corporation ("FNIS");
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
ARTICLE I.
RETENTION FOR UPDATING AND MAINTENANCE SERVICES
Section 1.01 Retention of PI. As of the Effective Date, each of the
Companies hereby retains PI to provide to such Company the services described in
Section 2.01 (the "Services") for its respective Title Plants that are described
in EXHIBIT B; and PI hereby accepts such retention as to each Company and each
of the FNF Title Plants that are described in EXHIBIT B, all in accordance with
the terms and conditions of this Agreement. Without limiting the foregoing, the
parties acknowledge that PI may use employees, independent contractors or
consultants to provide the Services.
ARTICLE II.
THE SERVICES
Section 2.01 PI Services. During the term of this Agreement, and
subject to the terms and conditions hereof, PI shall provide (or cause to be
provided) all of the services described in this Section 2.01.
(a) Updating, Purging and Maintaining the Title Plants. After receiving
from each Company all of the FNF Title Plants as updated, purged and maintained
up to the Effective Date (as to each of the FNF Title Plants, a "Base Title
Plant" and collectively the "Base FNF Title Plants") as contemplated by Section
2.03(b), PI shall periodically update and purge each of the Base FNF Title
Plants in accordance with the specifications and the frequency and procedural
requirements set forth on the applicable schedule for such Title Plant included
in EXHIBIT B. Each of the Base FNF Title Plants shall be sorted, stored, filed
and maintained in the format specified for such Base Title Plant on the
applicable Title Plant schedule to EXHIBIT B. PI shall extract pertinent
information from the public records and add such pertinent information to each
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Base Title Plant, and purge outdated or irrelevant information, all in
accordance with the specifications set forth on the applicable Title Plant
schedule to EXHIBIT B. Without limiting or expanding the foregoing and as a
non-contractual commitment, the parties acknowledge that (i) the objective of
these services is to maintain each of the FNF Title Plants in such a manner that
it will at all times be current, accurate and accessible, so as to provide an
abstract and title evidence plant for the geographic areas covered by the FNF
Title Plants, and (ii) the title plant updating and maintenance services being
provided by the former Property Insight Divisions of the Companies (the
"Divisions") as of the Effective Date are of a nature and quality that satisfies
these objectives. For sake of clarification, the parties further acknowledge
that, as between PI and the Companies, each of the FNF Title Plants, as so
updated by PI, remain exclusively owned by the respective Company.
(b) Manuals and Training. PI shall produce and maintain detailed
documentation designed to enable each Company and its respective employees to
understand the nature and content of such Company's Title Plants. This will
include creating and maintaining manuals and other documentation setting forth
in reasonable detail a description of the nature and content of the databases,
indices and other information and materials included in each FNF Title Plant.
Such manuals and documentation are the property of PI and shall be returned to
it upon termination of PI's obligations to provide the Services under this
Agreement, provided that each Company shall be provided with a copy of all
manuals and documentation, as updated and maintained to the date of such
termination, relating to each of such Company's Title Plants.
Section 2.02 Additional Obligations of PI in Performing Services.
(a) Proprietary Systems. The parties acknowledge that in providing the
Services described herein, PI may utilize proprietary systems and software,
together with methodologies and technologies, developed, owned or licensed by it
(the "Proprietary Systems"), to process, store, extract and manipulate the data
and information in the FNF Title Plants into a readily accessible and searchable
information system. Each of the Companies acknowledges that, unless otherwise
provided in this Agreement (including without limitation Section 8.02) or agreed
in writing by the parties, such Company has no ownership right, title or
interest in the Proprietary Systems, including any and all source code, object
code and/or compiled code that may be used in connection with constructing,
processing, extracting or manipulating the Company's Title Plants. Nothing in
this Section 2.02(a) shall affect any ownership or other right that any Company
has in the intellectual property described in Article IV.
(b) Updated and Replacement Equipment and Systems. PI may, but is not
required to, from time to time acquire or develop additional hardware, software
or other equipment or systems in connection with the fulfillment of its
obligations hereunder. All such acquisitions shall be at the expense of PI and,
subject to Section 8.02, such hardware, software or other equipment or systems
so acquired shall be owned solely by PI, unless one or more of the Companies has
agreed to compensate PI for such acquired property, and no Company will have any
ownership rights therein, unless otherwise agreed by the applicable parties. The
parties acknowledge that it is contemplated that the parties will discuss and
mutually agree on who will provide financial support and funding for the
development of any upgraded or advance software or systems and who will be the
owner(s) that have rights to use such developments.
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Section 2.03 Obligations and Rights of the Companies.
(a) Exclusive Use of PI Services. With respect to the Services
hereunder that PI will provide to each Company as of the Effective Date, each
Company agrees to use PI exclusively for Services for such Company's Title
Plants described in EXHIBIT B at all times during the applicable term of this
Agreement, subject in all cases to the termination provisions set forth in
Article VIII. To the extent that, after the Effective Date, PI has or acquires
the right to update and maintain any other title plant in a geographic location
in which a Company is doing business and is receiving title plant updating and
maintenance services from any other party (other than PI or a direct subsidiary
of such Company), then, so long as the service levels and pricing (including
royalties) offered by PI for title plant updating and maintenance services are
as good or better than the service levels and pricing in effect with such other
party, if requested by PI, such Company agrees to (x) terminate its title plant
updating and maintenance contract with such other party at the earliest date
permitted without incurring a termination fee or penalty and (y) enter into a
contract with PI for the provision of title plant updating and maintenance
services (similar to those provided hereunder). Furthermore, each Company agrees
that, so long as Services are being provided to it hereunder, to the extent that
(A) such Company determines to enter into a service arrangement with any other
party (other than a direct subsidiary of such Company) to update and maintain
any other title plants that are currently owned or may hereafter be acquired by
the Company, and (B) the service levels and pricing (including royalties)
offered by PI for such title plant updating and maintenance services are as good
as or better than the service levels and pricing offered by such other party, if
requested by PI, such Company agrees to obtain such services from PI
exclusively. If the service levels or pricing terms offered by PI for title
plant updating and maintenance services for additional title plants pursuant to
this Section 2.03(a) are not as good or better than those offered by the other
applicable party and if the applicable Company has otherwise complied with the
provisions of this Section 2.03(a), then nothing contained herein shall restrict
or limit the ability of such Company to enter into any service arrangement with
another party to update and maintain such Company's applicable title plants.
(b) Base Title Plant Provided. Each of the Companies hereby agrees
that, on the Effective Date, it will make available to PI, all of the Base Title
Plants (as more fully specified in the applicable schedule for such Title Plant
included in EXHIBIT B) that comprise each Title Plant owned by such Company as
of the Effective Date so that PI will be able to perform the Services to the
Companies and similar services to other customers of PI.
(c) Representations and Warranties Regarding Software and Title Plants.
Each of the Companies hereby represents and covenants to PI, as to its Title
Plants and Software that:
(i) The Company owns, or has a license or right to use and
sublicense to others, all of its Title Plants and Software, as more
specifically identified on the applicable schedule for each Title Plant
included in EXHIBIT B, free and clear of all liens, encumbrances and
adverse claims. No proceedings are pending or, to the knowledge of the
Company, threatened which challenge the rights of the Company with
respect to its Title Plants and Software, nor has any person or entity
claimed or alleged any rights thereto.
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(ii) All of its Title Plants and Software meet the
specifications set forth on EXHIBIT B, and the Company has taken
reasonable precautions to assure that the Title Plants and Software, as
provided to PI on the Effective Date, are free of viruses or other
contaminants that are designed to disable, lock, erase or otherwise
interfere with normal use thereof.
(iii) The Company's use of its Title Plants and Software,
including the licenses granted to PI pursuant to Article IV, does not
infringe upon any intellectual property rights of any other person or
entity.
(iv) The schedules included in EXHIBIT B accurately describe
all of the software, software programs, and software systems that are
in use by each Company (directly or indirectly through its respective
Division) as of the Effective Date.
(d) Compliance with Title Plant Access Agreement. The Companies
acknowledge that simultaneously herewith, PI has entered into the Title Plant
Access Agreement with RMSS, pursuant to which RMSS will obtain access from PI to
the updated FNF Title Plants, on behalf of the Companies and other FNF
Affiliates. The terms of the access to the FNF Title Plants are set forth in
schedules and exhibits to the Title Plant Access Agreement. In connection with
such access, and as part of the consideration hereunder, each of the Companies
agrees to abide (and to cause RMSS to comply) with the terms of the Title Plant
Access Agreement, including the terms and conditions governing access to the FNF
Title Plants.
Section 2.04 Working Committee. Within 10 days following the
effectiveness of this Agreement, the parties shall establish a title plant
working committee who shall be empowered and authorized to work together to
mutually agree to adjust and/or refine (including additions or deletions) the
specific services to be provided hereunder, and whose members shall include one
representative from each of the parties to this Agreement. The working committee
shall meet from time to time as necessitated by the operation of this Agreement.
Section 2.05 Errors.
(a) Errors Discovered. Promptly upon the discovery of any error in the
information, in whatever form, contained in any FNF Title Plant, each Company
shall communicate in writing to PI, setting forth a detailed description of the
error and the means of locating the error within the applicable FNF Title Plant
and the relevant search system. Upon receipt of such information, PI shall
promptly investigate the allegedly erroneous information and upon verification,
shall incorporate the correction into the applicable FNF Title Plant(s).
(b) Liability for Errors. Notwithstanding any provision to the
contrary, except in the event of PI's gross negligence or willful misconduct, PI
shall have no liability to any Company for any error in any of the information
provided in the performance of the Services in connection with any of the FNF
Title Plants, including without limitation the ordinary ongoing maintenance of
such Company's Title Plants, and the periodic posting and updating title
information in the Company's Title Plants, by PI. PI shall have no liability or
responsibility to any customer of any Company, or to any person or entity to
which such Company may furnish such title information, report, binder, guarantee
or policy, by reason of any error in any information furnished by PI
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hereunder. In the event that any such customer or person shall claim or assert
that PI has such liability by reason of any error in the information that PI is
required to furnish or has furnished under the terms of this Agreement, the
applicable Company shall indemnify and hold PI harmless from and against such
claim or demand, including the reasonable costs, expenses, attorneys' fees and
actual loss or losses incurred or sustained by reason of such claim or
assertion. When such a claim or assertion is made to PI, it shall promptly give
notice to the applicable Company, and such Company shall have the right (if it
so elects) to provide for the defense of PI in any action or litigation based
upon or involving such claim or assertion, by counsel of the Company's choosing
and at the Company's expense, and to pursue such litigation to final
determination. In such event, the applicable Company shall also have the right,
at its sole cost, whether or not any action or litigation shall have resulted,
to compromise or settle any such claim on behalf of PI, except to the extent
that such compromise or settlement involves terms other than money damages or
does not provide for a full release of claims for the benefit of PI.
ARTICLE III.
PERFORMANCE OF SERVICES
Section 3.01 Performance of Services. PI and each of the Companies
shall perform their respective obligations hereunder with the same degree of
care, skill, and prudence customarily exercised for their own operations. Except
as may be specifically noted in the description of services to be performed in
connection with a particular Title Plant (including the service level
requirements therefor) on it respective schedule to EXHIBIT B, it is understood
and agreed that, unless and until otherwise agreed by the applicable Company,
the Services provided to each Company will be of a nature and quality reasonably
comparable to the Services performed by the Divisions during the fiscal year
immediately prior to the execution of this Agreement.
Section 3.02 Use of Services. The parties agree to perform and use the
Services in accordance with all applicable federal, state, and local laws,
rules, regulations, and tariffs and in accordance with reasonable conditions,
rules, regulations and specifications which are or may be set forth in any
manuals, materials, documents, or instructions from the other parties, as
applicable. Each party reserves the right to take all actions in order to ensure
that the Services are provided in accordance with any applicable laws, rules,
regulations, and tariffs.
Section 3.03 Authority. Each party to this Agreement will retain
discretion, control, and management over its respective business, including,
without limitation, (i) oversight and management, (ii) formulation and
implementation of policy decisions, (iii) supervision of the employment of
personnel, and (iv) payment of all financial obligations.
Section 3.04 Officers and Directors. Nothing herein shall be construed
to restrict the officers and directors of PI or any of the Companies in the
performance of their respective duties or limit the exercise of their powers as
prescribed by law or otherwise.
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ARTICLE IV.
LICENSE OF TITLE PLANTS AND RELATED SOFTWARE
Section 4.01 License to Use Title Plant Assets and Software.
(a) Grant of Title Plant License. In consideration for the Services to
be provided by PI to each Company pursuant to this Agreement, each Company
hereby grants to PI, a perpetual, irrevocable, non-terminable, transferable, and
nonexclusive worldwide license (as to each Company and its Title Plants, the
"Title Plant License") to use, exploit, sell services from, sublicense, operate,
alter, modify, adapt, distribute, create derivative works from, display, copy
(for internal use and for use by third parties who have entered into contracts
with PI for access to the FNF Title Plants), and access such Company's Title
Plants, (including as updated and compiled through the Services), including
without limitation any use in connection with arrangements that may be entered
into by PI with other potential users of the Title Plants (including FNF
Affiliates as well as entities who may be competitors of the Company) to provide
such users with rights to access the applicable Title Plants, provided, however,
that in no event shall any such other user be granted any ownership rights in or
to any of the FNF Title Plants.
(b) Grant of Software License. In further consideration for the
Services to be provided by PI pursuant to this Agreement, each Company hereby
grants to PI, a perpetual, irrevocable, non-terminable, transferable, and
nonexclusive worldwide license (as to each Company, its "Software License") to
use, reproduce, exploit, sell services from, sublicense, operate, alter, modify,
adapt, distribute, create derivative works from, display and access all of the
software, software programs, and software systems that are currently used by
such Company, either directly or through its Division (including without
limitation the software known as "Super Search") (collectively, for each
Company, its "Software"), as more fully identified on EXHIBIT B, and including
the right to create derivative and advanced works and the right to sublicense
use of the Software to other third parties. In addition, in furtherance of the
purposes and provisions of this Agreement (including without limitation Article
VIII), each Company hereby grants to each of the other Companies a Software
License to use, reproduce, exploit, sell services from, sublicense, operate,
alter, modify, adapt, distribute, create derivative works from, display and
access all of its Software, and including the right to create derivative and
advanced works and the right to sublicense use of the Software to other third
parties. All right, title and interest, including copyright, in the derivative
works created by or at the direction of PI, as between PI and the Companies,
shall be owned by PI.
Section 4.02 Assignment of Existing Access Agreements. In further
consideration of the Services to be provided by PI pursuant to this Agreement,
each Company hereby assigns to PI all of such Company's right, title and
interests in and to, and all of its obligations to perform, all of the
agreements in effect as of the Effective Date pursuant to which the Company has
granted access to one or more of its Title Plants to third parties (excluding
FNF Affiliates), all of which are listed on the applicable Title Plant schedules
to EXHIBIT B. PI hereby agrees to perform the obligations under all such
agreements in accordance with the terms and conditions set forth therein, and
shall be entitled to all fees, compensation and other payments under these
agreements.
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Section 4.03 Royalties.
(a) Calculation of the Royalty. In consideration for the grant of the
Title Plant License and the Software License (collectively the "Licenses"), and
subject to the royalty termination provisions set forth in Section 8.02(a)(iii),
so long as one or both of the Licenses are effective hereunder or PI is
otherwise entitled to access any of the FNF Title Plants or the Software
(including during the period pending the effectiveness of a termination under
Section 8.02), PI agrees to pay to the Companies a royalty (the "Royalty"),
equal to the amounts calculated in accordance with the tiered rate formula set
forth on EXHIBIT A, and subject to adjustment as described on EXHIBIT A. Each
Company will receive its proportionate share of any Royalty paid, calculated on
the basis of the aggregate amount of usage of and access to such Company's Title
Plants during the period for which the Royalty was received, with the sharing
recalculated each such period. If PI is no longer obligated to provide the
Services to a Company hereunder, then (subject to the royalty termination
provisions set forth in Section 8.02(a)(iii)) PI shall continue to pay the
Royalty to each of the Companies who remains a party to this Agreement as to
which PI continues to be obligated to provide the Services, but any Company as
to which Services are no longer being performed shall not share in the Royalty
as of the date on which the Service obligations terminated.
(b) Payment of the Royalty. On or before the 25th day of each calendar
month, PI shall pay to each Company its pro rata share of the Royalty,
calculated in accordance with EXHIBIT A for the immediately preceding calendar
month, provided, that, as more fully described in EXHIBIT A, the aggregate
amount of the Royalty due and paid in each fiscal year shall be re-calculated
and confirmed at the end of such fiscal year, with each of the applicable
parties making additional payments or refunds as required in accordance with the
annual re-calculation numbers. All payments hereunder shall be in immediately
available funds in lawful US currency. Each Company shall provide PI with wire
transfer or other payment instructions for its share of the Royalty.
Section 4.04 Limitation of License. The parties acknowledge that, as to
each of the Title Plants and the Software, no right of ownership therein is
transferred to PI by the terms of this Agreement, other than with regard to
certain possible derivative works as expressly set forth in Section 4.01. Except
as otherwise contemplated in Section 4.01, as between the parties hereto, each
applicable Company retains ownership of and all rights of any kind whatsoever in
its respective Title Plants and Software, including without limitation, rights
in data structures, data, written documentation, and all other attributes of any
kind, whether such rights are granted by the law of the United States or any
state in the United States, including common law, the law of any other national
or international jurisdiction, or by international treaty or convention.
ARTICLE V.
CONFIDENTIALITY
Section 5.01 Each party hereto may from time to time be provided with
or have access to information that is confidential and proprietary to the other
parties hereto. Accordingly, each party agrees that (i) it will not reveal such
information or any of it, that is not otherwise generally available to the
public, to a third party without the prior written consent of the other
applicable party, except as may be permitted by the grant of the sublicensing
rights described above or as
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required by law or as necessary to perform obligations or enforce rights
hereunder; (ii) that such information will be distributed only to those of its
own employees and officers and agents who have a reasonable need for it in order
to carry out the purposes of and exercise its rights under this Agreement; (iii)
that such information will not be used in any manner except for the purpose
provided; and (iv) that upon termination of this Agreement, all documents
containing such confidential or proprietary information upon request will be
returned promptly to the party to which such information belongs. Each party
shall take such steps as are reasonably necessary to protect the confidential or
proprietary information of the others. For purposes hereof, confidential or
proprietary information shall include, among other things, customer lists and
other customer information, and financial, technical, and business information
relating to one party and provided by such party to the others, including
without limitation any of the FNF Title Plants, and the Proprietary Systems.
ARTICLE VI.
RELATIONSHIP OF PARTIES
Section 6.01 Independent Contractors. Each of the parties hereto is an
independent contractor acting for its own account and is not authorized to make
any commitment or representation on the other's behalf unless authorized in
writing.
Section 6.02 Competition. None of the parties shall have a duty to any
other party to refrain from engaging in the business of providing services
similar or identical to the business of the other parties, nor shall any of the
parties have a duty to any other party to refrain from engaging in the business
of providing services similar or identical to the Services hereunder to third
parties, provided in all cases that nothing herein shall permit any of the
Companies (i) to create or maintain a business or entity, a significant portion
of whose business is the updating and maintenance of title plants for
non-affiliated parties, in competition with PI, or (ii) to enter into a contract
to receive title plant updating and maintenance services from any third party
unless the applicable Company(s) first have complied with the provisions of
Section 2.03(a). Notwithstanding the foregoing, the parties acknowledge that, as
of the date of this Agreement, some or all of the Companies currently undertake
and perform title plant updating and maintenance services for themselves and for
others, and nothing herein is intended to preclude or restrict the on-going
provision of such services.
ARTICLE VII.
DISCLAIMER AND LIMITATIONS OF LIABILITY
Section 7.01 Limitations of Liability. THE LIABILITY OF ANY PARTY FOR A
CLAIM ASSERTED BY ANY OTHER PARTY BASED ON A BREACH OF ANY COVENANT UNDER,
AGREEMENT IN, OR UNDERTAKING REQUIRED BY, THIS AGREEMENT SHALL NOT EXCEED, IN
THE AGGREGATE, AN AMOUNT EQUAL TO THE "MAXIMUM LIABILITY AMOUNT" (AS HEREINAFTER
DEFINED) CALCULATED FOR THE FISCAL YEAR (SUBJECT TO THE LAST TWO SENTENCES OF
THIS SECTION) IMMEDIATELY PRIOR TO THE YEAR IN WHICH SUCH LIABILITY ARISES;
PROVIDED THAT THE MAXIMUM LIABILITY AMOUNT SHALL NOT BE APPLICABLE IN RESPECT OF
ANY CLAIMS BASED ON A PARTY'S (i) GROSS NEGLIGENCE, (ii) WILLFUL MISCONDUCT,
(iii) IMPROPER USE OR DISCLOSURE OF
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CONFIDENTIAL INFORMATION, (iv) VIOLATIONS OF LAW, OR (v) INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF A PERSON OR ENTITY WHO IS NOT A PARTY HERETO OR
THE SUBSIDIARY OF A PARTY HERETO. For purposes hereof, "Maximum Liability
Amount" means, for any fiscal year, the amount equal to 1.25% of PI's annual
gross revenues that are attributable to the use of the FNF Title Plants and/or
use of the Software, as determined in accordance with generally accepted
accounting principles consistently applied throughout the applicable period. In
the event that liability hereunder shall arise during the first 2 calendar years
of the effectiveness of this Agreement (i.e., arising any time prior to December
31, 2005), for purposes of calculating the Maximum Liability Amount, the amount
of PI's annual gross revenues shall be equal to the product of (x) the average
monthly gross revenues that are attributable to the use of the FNF Title Plants
and/or use of the Software for the entire period immediately prior to the date
on which such liability arises, multiplied by (y) 12. Without limiting and
subject to the foregoing and to Section 7.02, the parties acknowledge that if
the obligation to provide Services under this Agreement is terminated pursuant
to Sections 8.01(c), (e) or (h), then PI shall be liable for compensatory
damages in an amount equal to the actual increased marginal costs incurred by
the Companies in obtaining updated title plant information from the FNF Title
Plants.
Section 7.02 Disclaimer of Liability. NONE OF THE PARTIES HERETO SHALL
BE LIABLE TO ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER
PECUNIARY LOSSES, OR DAMAGES ARISING OUT OF LITIGATION OR GOVERNMENTAL
INVESTIGATION, OR ARISING FROM THIS AGREEMENT OR THE USE OR INABILITY TO USE ANY
OF THE TITLE PLANTS, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, WHETHER
FORESEEN OR UNFORESEEN, FORESEEABLE OR UNFORESEEABLE. THE FOREGOING LIMITATIONS
OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH
DAMAGES ARE SOUGHT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
ARTICLE VIII.
TERM AND TERMINATION
Section 8.01 Termination. The obligation to provide Services under this
Agreement may be terminated by any of the following means (it being understood
that, notwithstanding any termination of the obligation to provide the Services,
the Licenses may be terminated only as provided in Section 8.02):
(a) at any time by mutual agreement of the parties hereto, in which
event the obligation to provide Services under this Agreement shall terminate as
of the date specified by the parties;
(b) as to each Company, at any time by PI, if such Company breaches any
material warranty or fails to perform any material obligation hereunder, and
such breach is not remedied within 30 days after written notice thereof to such
Company that is in default, in which event as
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to such Company the obligation to provide Services under this Agreement shall
terminate on the 20th business day following the expiration of such 30-day cure
period; provided that if the breach or default is of a nature that it cannot
reasonably be cured within a 30-day period and the breaching Company is actively
pursuing a cure in good faith, then no default shall be deemed to have occurred
so long as the default is cured as promptly as reasonably possible and in any
event prior to the first anniversary of the occurrence of such default; and
provided, further, that the termination of the obligation to provide Services
under this Agreement as to such Company shall not affect the effectiveness of
this Agreement to the obligations of PI to the other Companies nor the
obligations of the other Companies (other than the defaulting Company) to PI;
(c) as to PI, at any time by any Company, if PI breaches any material
warranty or fails to perform any material Service obligation owing hereunder to
such Company, and such breach is not remedied within 30 days after written
notice thereof to PI, in which event the obligation to provide Services to such
Company under this Agreement shall terminate on the 20th business day following
the expiration of such 30-day cure period; provided that if the breach or
default is of a nature that it cannot reasonably be cured within a 30-day period
and PI is actively pursuing a cure in good faith, then no default shall be
deemed to have occurred so long as the default is cured as promptly as
reasonably possible and in any event prior to the first anniversary of the
occurrence of such default; and provided, further, that the termination of the
obligation to provide Services under this Agreement as to such Company shall not
affect the effectiveness of this Agreement to the obligations of PI to the other
Companies nor the obligations of the other Companies (other than the terminating
Company) to PI;
(d) as to each Company, at any time by PI, if such Company shall admit
in writing its inability to, or be generally unable to, pay its debts as such
debts become due, or shall (1) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee, examiner or
liquidator of itself or of all or a substantial part of its property or assets,
(2) make a general assignment for the benefit of its creditors, (3) commence a
voluntary case under the federal Bankruptcy Code, (4) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (5) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code or (6) take any company action for
the purpose of effecting any of the foregoing, in which event as to such Company
the obligation to provide Services under this Agreement shall terminate
immediately; provided that the termination of the obligation to provide Services
under this Agreement as to such Company shall not affect the effectiveness of
this Agreement to the obligations of PI to the other Companies nor the
obligations of the other Companies (other than the terminating Company) to PI;
(e) as to PI, at any time by any Company, if PI shall admit in writing
its inability to, or be generally unable to, pay its debts as such debts become
due, or shall (1) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator of itself
or of all or a substantial part of its property or assets, (2) make a general
assignment for the benefit of its creditors, (3) commence a voluntary case under
the federal Bankruptcy Code, (4) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of debts,
(5) fail to controvert in a timely and appropriate manner,
11
or acquiesce in writing to, any petition filed against it in an involuntary case
under the Bankruptcy Code or (6) take any company action for the purpose of
effecting any of the foregoing, in which event as to such Company the obligation
to provide Services under this Agreement shall terminate immediately; provided
that the termination of the obligation to provide Services under this Agreement
as to such Company shall not affect the effectiveness of this Agreement to the
obligations of PI to the other Companies nor the obligations of the other
Companies (other than the terminating Company) to PI;
(f) as to each Company, on or after the 5th anniversary of the
Effective Date, by PI, upon 5 years' prior written notice to such Company;
provided that the termination of the obligation to provide Services under this
Agreement as to such Company shall not affect the effectiveness of this
Agreement to the obligations of PI to the other Companies nor the obligations of
the other Companies (other than the defaulting Company) to PI;
(g) as to PI, on or after the 5th anniversary of the Effective Date, by
any Company, upon 5 years' prior written notice to PI, provided that the
termination of the obligation to provide Services under this Agreement as to
such Company shall not affect the effectiveness of this Agreement to the
obligations of PI to the other Companies nor the obligations of the other
Companies (other than the terminating Company) to PI;
(h) as to PI, at any time by any Company if there has been a change in
control of PI; it being understood, that for purposes of this provision, "change
of control" means a reorganization, merger, share (or LLC ownership interest)
exchange or consolidation, or sale or other disposition of more than 50% of the
LLC ownership interests in, or all or substantially all of the assets or
business of, PI, other than a transaction in which no person or entity, other
than FNIS or an entity controlled by FNIS, will have beneficial ownership,
directly or indirectly, of 50% or more of the LLC ownership interests of PI or
of the power to appoint the LLC manager(s) or vote in the election of directors;
or
(i) as to any Company, upon 6 months prior written notice by such
Company to PI if there has been a change in control of the Company; it being
understood, that for purposes of this provision, "change of control" of a
Company means a reorganization, merger, share exchange or consolidation, or sale
or other disposition of more than 50% of the voting capital stock in, or all or
substantially all of the assets or business of, such Company, other than a
transaction in which no person or entity, other than FNF or an entity controlled
by FNF, will have beneficial ownership, directly or indirectly, of 50% or more
of the voting capital stock of PI or of the power to vote the election of
directors.
Section 8.02 Effect of Termination.
(a) Services and Licenses. Upon termination of the obligation to
provide Services to any particular Company or as to PI under this Agreement
pursuant to Section 8.01 (the date on which the termination of the obligation to
provide Services under this Agreement is effective being the "Service
Termination Date"), then:
(i) the obligations of each applicable terminating or
terminated party hereunder (except to the extent set forth in Section
8.03) shall immediately cease; and
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(ii) if the termination is pursuant to Sections 8.01 (c), (e),
(f) or (h), then, with respect to the terminating Company(s), the
applicable Licenses granted to, and the rights to grant sublicenses and
access to the applicable FNF Title Plants and the Software by, PI from
the terminating Company(s) pursuant to Article IV shall terminate,
effective as of the date of the latest expiration date of the third
party contracts entered into by PI for title plant access to any of the
applicable FNF Title Plants, provided that in no event shall the date
for the termination of the applicable Licenses hereunder be later that
the 5th anniversary of the Service Termination Date, and provided,
further, that, notwithstanding the Service Termination Date, Royalty
payments in accordance with Section 4.03 for the access to and use of
the applicable FNF Title Plants and Software shall continue to be due
and owing from PI until the date on which the applicable Licenses are
fully terminated and PI is no longer entitled to use or access any of
the applicable FNF Title Plants or Software; it being understood that
after the Service Termination Date, PI shall not enter into any
additional third party contracts for title plant access to any of the
applicable FNF Title Plants nor shall PI extend or renew any such third
party contract even if such extension or renewal would expire prior to
the latest expiration date referred to above and the 5th anniversary of
the Service Termination Date. So long as the obligation to provide
Services to any Company under this Agreement has not been terminated
pursuant to Sections 8.01 (c), (e), (f) or (h), then the Licenses
granted, and the rights to grant sublicenses, to PI from such Company
pursuant to Article IV shall continue to be in full force and effect
and, except as provided in this Article VIII, be perpetual,
non-terminable, and irrevocable; and
(iii) if the termination is pursuant to Sections 8.01(b), (d),
(g) or (i), then, as to each Company as to which such termination is
effective, (A) the Licenses granted to, and the rights to grant
sublicenses and access to the FNF Title Plants and the Software by, PI
pursuant to Article IV shall thereafter be perpetual, non-terminable,
irrevocable and fully-paid, effective as of the Service Termination
Date, (B) PI shall be entitled to retain a copy of the FNF Title
Plants, as updated and maintained to the Service Termination Date, and
(C) PI shall have no further obligation to pay any additional Royalty
to such terminating or terminated Company as of the Service Termination
Date. Without limiting the foregoing, it is understood by the parties
that after the Service Termination Date, PI shall be permitted to enter
into third party contracts for title plant access to any of the FNF
Title Plants and to extend or renew existing contracts, in each case,
without payment of any Royalties to the Companies; and
(iv) if the termination is pursuant to Section 8.01 (a), then
the Licenses granted to, and the rights to grant sublicenses and access
to the FNF Title Plants and the Software by, PI pursuant to Article IV
shall be effective or shall terminate as per the agreement of the
parties in connection with such termination.
(b) Return of Title Plants and Software; Licensed of New Software. If
the obligation to provide Services under this Agreement has been terminated
then, within 2 business days of the date on which such termination is effective:
(i) Return of Title Plants and Software. PI shall make
available to each Company for which Services are being terminated (A)
an original copy of each of the
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FNF Title Plants owned by such Company, as updated and maintained to
the date of termination, in a generally-accessible format or system
that will permit the Company who owns such Title Plant to easily use
and access the applicable Title Plant, together with such Company's
Software, and (B) an original copy of each of the Title Plants owned by
such Company, as updated and maintained to the date of termination, in
the form and format utilized in PI's normal course of business,
together with such Company's Software and a copy of all of the
software, software programs and software systems that are necessary or
appropriate to permit the Company to use and access its Title Plants
(the "New Software"), including an irrevocable, non-terminable,
transferable, non-exclusive and royalty-free worldwide license to use,
reproduce, exploit, sell services from, sublicense, operate, alter,
modify, adapt, distribute, create derivative works from, display and
access the New Software, in each case effective from the date on which
the New Software is delivered to such Company; provided that (x) if the
termination is pursuant to Sections 8.01 (c), (e), (f) or (h), then
such license to use and access the New Software shall be perpetual, (y)
if the termination is pursuant to Sections 8.01(b), (d), (g) or (i),
then such license to use and access the New Software shall be effective
for a one year period, and (z) if the termination is pursuant to
Section 8.01(a), then such license to use and access the New Software
shall be effective for that period mutually agreed among the parties;
and
(ii) License of Upgraded Software. Except as otherwise
provided in Section 8.02(b)(i), if either PI, on the one hand, or the
Companies, on the other, is the owner of, or has other licensable
rights (including the right to transfer or sublicense) to, the software
and systems used to update, manage, maintain and access each of the FNF
Title Plants (the "Upgraded Software"), then, effective as of the date
on which the termination is effective, either (A) if PI is the party
who is the owner of, or has other licensable rights (including the
right to transfer or sublicense) to, the Upgraded Software and the
termination is pursuant to Sections 8.01 (c), (e), (f) or (h), then PI
shall grant to the Companies a perpetual, irrevocable, non-terminable,
transferable, and nonexclusive royalty-free worldwide license to use,
reproduce, exploit, sell services from, sublicense, operate, alter,
modify, adapt, distribute, create derivative works from, display and
access the Upgraded Software; or (B) if one or more of the Companies is
the party(s) who is the owner of, or has other licensable rights
(including the right to transfer or sublicense) to, the Upgraded
Software and the termination is pursuant to Sections 8.01(b), (d), (g)
or (i), then the applicable Company(s) shall grant to PI a perpetual,
irrevocable, non-terminable, transferable, and nonexclusive
royalty-free worldwide license to use, reproduce, exploit, sell
services from, sublicense, operate, alter, modify, adapt, distribute,
create derivative works from, display and access the Upgraded Software;
it being understood that (x) if PI is the party who is the owner of, or
has other licensable rights (including the right to transfer or
sublicense) to, the Upgraded Software and the termination is pursuant
to Sections 8.01(b), (d), (g) or (i), then PI shall have no obligation
to provide the Companies with any license or copy of, or use or access
to, the Upgraded Software, and (y) if one or more of the Companies is
the party(s) who is the owner of, or has other licensable rights
(including the right to transfer or sublicense) to, the Upgraded
Software and the termination is pursuant to Sections 8.01 (c), (e), (f)
or (h), then the applicable Company(s) shall have no obligation to
provide PI with any license or copy of, or use or access to, the
Upgraded Software. If required to license the Upgraded Software
pursuant
14
to this Section 8.02(b)(ii), then the applicable party agrees to make
available to the other(s) a copy of the Upgraded Software, together
with instructions on its use and maintenance and, if reasonably
requested, training and other assistance in learning to use the
Upgraded Software. If PI, on the one hand, or one or more of the
Companies, on the other, has rights from third parties to use and
access the software and systems used to update, manage, maintain and
access each of the FNF Title Plants, which rights are not transferable
or may not be sublicensed, then upon termination the applicable party
will cooperate with the other(s) in an effort to obtain rights in and
to such software and systems from the third party owners.
Section 8.03 Survival. Notwithstanding anything to the contrary in this
Agreement, the provisions of Section 2.05(b) (Liability for Errors), Article IV
(License of Title Plants and Related Software), Article V (Confidentiality),
Article VII (Disclaimer and Limitations of Liability) and this Article VIII
(Term and Termination) shall survive the expiration or termination of this
Agreement. In addition, termination of this Agreement as to any particular
Company shall not affect the effectiveness and continuation of this Agreement as
to the non-terminating and non-terminated Companies.
ARTICLE IX.
DISPUTE RESOLUTION
Section 9.01 Amicable Resolution. The parties 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 the parties in connection with this Agreement
(including, without limitation, any use of the Licenses or the termination of
the licenses granted hereby), then the Dispute, upon written request of any
party, will be referred for resolution to the applicable Division Presidents of
the parties, who will have ten (10) days to resolve such Dispute.
Section 9.02 Mediation. In the event any Dispute cannot be resolved in
a friendly manner as set forth in Section 9.01, the parties intend that such
Dispute be resolved by mediation. If the Division Presidents of the parties are
unable to resolve the Dispute as contemplated by Section 9.01, any party may
demand mediation of the Dispute by written notice to the other parties in which
case PI, on the one hand, and the Companies, on the other, will select a single
mediator within ten (10) days after the demand. No party may unreasonably
withhold consent to the selection of the mediator. Each party will bear its own
costs of mediation but the parties will share the costs of the mediator 50/50
between PI, on the one hand, and the Companies, on the other. The mediator will
have twenty (20) days from the date of referral to resolve any Dispute.
Section 9.03 Arbitration. In the event that the Dispute is not resolved
pursuant to Section 9.01 or through mediation pursuant to Section 9.02, the
latter within thirty (30) days of the submission of the Dispute to mediation,
any party involved in the Dispute may submit the dispute to binding arbitration
pursuant to this Section 9.03. All Disputes submitted to arbitration pursuant to
this Section 9.03 shall be resolved in accordance with the Commercial
Arbitration
15
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 any 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 the parties. If the parties 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 any party.
Section 9.04 Commencement of Dispute Resolution Procedure.
Notwithstanding anything to the contrary in this Agreement, the parties are
entitled to commence a dispute resolution procedure under this Agreement,
whether pursuant to this Article IX or otherwise.
ARTICLE X.
MISCELLANEOUS
Section 10.01 Non-Exclusive Remedy. The parties acknowledge and agree
that money damages would not be a sufficient remedy for any breach of this
Agreement by any party or misuse of the FNF Title Plants or the Software or any
confidential information of any party. Accordingly, nothing in Article IX or
this Article X will prevent any party from immediately seeking injunctive or
interim relief in such event. All actions for such injunctive or interim relief
shall be brought in a court of competent jurisdiction. In addition, the rights
and remedies of the parties provided in this Agreement shall not be exclusive
and are in addition to any other rights and remedies provided at law or in
equity.
Section 10.02 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto. None
of the parties may assign its respective rights and obligations under this
Agreement to any other person or entity without the prior written consent of the
other parties hereto, and in any event such assignment shall be subject to the
prior approval of the Missouri Department of Insurance so long as PI and the
Companies are "affiliates" as defined in section 382.010 of the Missouri
Statutes. Except as expressly provided in this Agreement, the parties hereto
intend that this Agreement shall not benefit or create any right or cause of
action in or on behalf of any person other than the parties hereto.
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Section 10.03 No Agency. Nothing in this Agreement shall be construed
as making any party the agent of the others or as creating a partnership, joint
venture or similar arrangement. As among the parties, each party shall be
responsible for the payment of compensation to its employees and those of its
subsidiaries, for any injury to them in the course of their employment, and for
withholding or 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.
Section 10.04 Notices. All notices and other communications required or
permitted hereunder shall be in writing (including telefax) and shall be
delivered personally, delivered by facsimile transmission (with confirmation of
receipt immediately thereafter by telephone), sent by nationally recognized
overnight courier (marked for overnight delivery), addressed to the parties at
the address appearing on the first page of this Agreement or to such other
address as may be hereafter designated in writing hereunder by the respective
parties. Each party shall promptly advise the other in writing of any change of
address.
Section 10.05 Severability. If any provision of this Agreement is held
illegal or unenforceable by any court of competent jurisdiction, such provision
shall be deemed separable from the remaining provisions of this Agreement and
shall not affect or impair the validity or enforceability of the remaining
provisions of this Agreement. The parties hereto agree to replace any such
illegal or unenforceable provision that has the most nearly similar permissible
economic or other effect.
Section 10.06 Governing Law. This Agreement shall be governed by the
laws of the State of California, without regard to its conflicts of law
principles.
Section 10.07 No Waiver. The failure of any party to enforce, in any
one or more instances, any of the terms or conditions of the Agreement shall not
be construed as a waiver of the future performance of any such term or
condition.
Section 10.08 Force Majeure. No party shall be liable for its failure
to perform any of its obligations hereunder during any period in which such
performance is directly delayed by the occurrence of events beyond the control
of the failing party such as fire, explosion, flood, storm or the acts of God,
war, acts of terrorism, embargo, riot, or the intervention of any government
authority, provided that the party suffering the delay immediately notifies the
other parties of the delay.
Section 10.09 Entire Agreement; Amendment. This Agreement constitutes
the entire agreement among the parties concerning the subject matter hereof and
supersedes all prior oral and written understandings and agreements between the
parties relating hereto. This Agreement may not be modified except in a writing
signed by the authorized representatives of the parties hereto, and any such
modification shall be subject to the prior approval of the Missouri Department
of Insurance so long as PI and the Companies are "affiliates" as defined in
section 382.010 of the Missouri Statutes.
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Section 10.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
Section 10.11 Title 11. Each of the licenses granted hereunder are, for
all purposes of Section 365(n) of Title 11 of the United States Code ("Title
11') and to the fullest extent permitted by law, a license of rights to
"intellectual property" as defined in Title 11. All parties agree that the
licensee of any rights under this Agreement shall retain and may fully exercise
all of its applicable rights and elections under Title 11.
Section 10.12 Effective Date. This Agreement shall be effective as of
business day (the "Effective Date") following the day on which (i) all insurance
regulatory approvals that are required are received and (ii) the prior notice
period applicable to all filings made to applicable title insurance regulators
has expired or been terminated or waived (by action of the regulator or
otherwise).
IN WITNESS WHEREOF, the parties have caused their respective duly
authorized representatives to execute this Agreement as of the date first above
written.
PROPERTY INSIGHT, LLC
By
---------------------------------------------
Name:
Title:
CHICAGO TITLE INSURANCE COMPANY
By
---------------------------------------------
Name:
Title:
SECURITY UNION TITLE INSURANCE COMPANY
By
---------------------------------------------
Name:
Title:
TICOR TITLE INSURANCE COMPANY
By
---------------------------------------------
Name:
Title:
18
