Exhibit 10.14
NOVATION
LICENSE AND SERVICES AGREEMENT
This License and Services Agreement (the "Agreement") is effective as
of September 27, 2005 ("Effective Date") by and between FIDELITY NATIONAL
INFORMATION SERVICES, INC., a Delaware corporation ("FIS"), and FIDELITY
NATIONAL TITLE GROUP, INC, a Delaware corporation ("FNT").
WHEREAS, FIS previously entered into a certain Stock Purchase
Agreement, dated as of December 23, 2004 (the "Stock Purchase Agreement"), with
Fidelity National Financial, Inc., a Delaware corporation ("FNF"), pursuant to
which certain purchasers (the "Purchasers") purchased from FIS 50,000,000 shares
of FIS' common stock, subject to the terms and conditions of the Stock Purchase
Agreement; and
WHEREAS, a condition to the closing of the transactions contemplated by
the Stock Purchase Agreement required that FIS and FNF enter into certain
Intercompany Agreements (as defined in the Stock Purchase Agreement), and that
the form and substance of such Intercompany Agreements be satisfactory to the
Parties and the representatives of the Purchasers; and
WHEREAS, FIS previously entered into a License and Services Agreement
dated as of March 4, 2005 (the "FNF Agreement") with FNF, as the parent company
of FNT and its subsidiaries, with respect to the use of certain software and the
provision of certain services, as more fully described herein; and
WHEREAS, pursuant to an Assignment and Assumption Agreement of even
date herewith between FNF and FNT, FNT has assumed, with the consent of FIS, all
of FNF's rights and obligations under the FNF Agreement; and
WHEREAS, FIS and FNT wish to enter into a novation of the rights and
obligations under the FNF Agreement, as assumed by and assigned to FNT, so that
FNT is the clear party in interest with respect to the license and services to
be provided by FIS, as more particularly described herein;
NOW THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement:
1.1. "COMPETITOR" means a natural or legal person offering a
product that competes with the LSI Processes.
1.2. "DAYS" means calendar days, unless otherwise specified.
1.3. "DOCUMENTATION" means FIS' standard documentation describing
the LSI Processes.
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1.4. "ESCALATION PROCEDURES" means the procedures set forth in
Section 10.2 of this Agreement.
1.5. "GEOGRAPHIC AREA" means the counties listed on Exhibit B
attached hereto, as amended from time to time pursuant to
Section 6.2 hereof.
1.6. "LSI PROCESSES" means those business processes indicated on
Exhibit A.
1.7. "MODIFICATION" means any customization, enhancement,
modification or change made to the LSI Processes and
Documentation under this Agreement.
1.8. "PERMITTED SUBSIDIARIES" has the meaning set forth in Section
3.1(a).
1.9. "PROPRIETARY INFORMATION" means all information disclosed by
or for FNT or FIS to the other during the negotiations hereof
and/or learned by reason of the relationship established
hereunder or pursuant hereto, including, without limitation,
the LSI Processes, Documentation, Modifications and all
information, data and designs related thereto. Information
relating to each party's business, plans, affiliates or
customers shall also be deemed "Proprietary Information" for
purposes of the Agreement. "Proprietary Information" shall
also include all "non-public personal information" as defined
in Title V of the Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C. Section
6801, et seq.) and the implementing regulations thereunder
(collectively, the "GLB Act"), as the same may be amended from
time to time, that FIS receives from or at the direction of
FNT and that concerns any of FNT's "customers" and/or
"consumers" (as defined in the GLB Act).
1.10. "SERVICES" has the meaning set forth in Section 4.1 of this
Agreement.
1.11. "SUBSIDIARY" means, with respect to any 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.
1.12. "TERM" has the meaning set forth in Section 6.1 of this
Agreement.
2. GRANT OF LICENSE.
2.1. GRANT. Subject to FNT's full payment, as due, of fees listed
in Exhibit D, FIS hereby grants to FNT for the benefit of the
Permitted Subsidiaries, and FNT for the benefit of the
Permitted Subsidiaries accepts from FIS, a nonexclusive,
license (except as otherwise provided for in Section 3 below)
for the Term of this Agreement to use the LSI Processes and
Documentation for properties with the Geographic Area, subject
to the restrictions and obligations set forth herein.
2.2. DELIVERY. As requested from time to time, FIS agrees to
deliver the LSI Processes and the Documentation to FNT for the
benefit of the Permitted Subsidiaries.
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3. LICENSE USE RESTRICTIONS.
3.1. RESTRICTIONS ON LSI PROCESSES AND DOCUMENTATION.
(a) FNT may not sell, lease, assign, transfer, distribute
or sublicense the LSI Processes or Documentation, to
any party, except that the LSI Processes and
Documentation may be used for the benefit of the
Subsidiaries of FNT indicated on Exhibit C hereof
(collectively, the "Permitted Subsidiaries").
(b) FNT will not make copies, or similar versions of the
LSI Processes or Documentation or any part thereof
without the prior written consent of FIS, except in
the process of contemplated use, for administrative,
archival or disaster recovery backup, and as
expressly provided otherwise herein.
(c) FNT may not provide copies of the LSI Processes or
Documentation to any person, firm, or corporation not
permitted hereunder except as permitted under
Sections 3.1 (a) and (b) above, and except as to
FNT's or a Permitted Subsidiary's non-Competitor
contractors or subcontractors who have executed
nondisclosure terms substantially similar to the
confidentiality terms herein.
(d) FNT shall not allow any third party to use or have
access to the LSI Processes or Documentation for any
purpose without FIS' prior written consent except as
permitted under Sections 3.1(a) and (b) above, and
except as to FNT's or a Permitted Subsidiary's
non-Competitor contractors or subcontractors who have
executed nondisclosure terms substantially similar to
the confidentiality terms herein.
4. SERVICES.
4.1. PROVISION OF MANAGEMENT SERVICES. During the Term, and subject
to the terms and conditions hereof, FIS shall provide (or
cause to be provided) all of the services described in this
Section 4 to FNT for the benefit of the Permitted Subsidiaries
(individually and collectively, the "Services"). For the
avoidance of doubt, the Services are in addition to and not
included within the scope of services described in that
certain Master Information Technology Services Agreement of
even date herewith between Fidelity Information Services, Inc.
and FNT.
4.2. IMPLEMENTATION AND OVERSIGHT OF THE LSI PROCESSES. FIS agrees
to oversee and provide advice to FNT for the benefit of the
Permitted Subsidiaries relating to the implementation of the
LSI processes including (x) all processes, personnel and
support functions of FNT for the benefit of the Permitted
Subsidiaries primarily relating to the implementation and use
of the LSI Processes, such oversight and advice shall, include
without limitation, the consulting services to FNT for the
benefit of the Permitted Subsidiaries relating to computer and
database systems, the creation of back-up/disaster recovery
procedures and sites, and implementation of appropriate
architecture. It is understood by the parties that the
Services to be provided hereunder include (but are not limited
to) infrastructure planning and
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implementation work by FIS for FNT for the benefit of the
Permitted Subsidiaries. It is anticipated that FIS may make
recommendations to FNT for the benefit of the Permitted
Subsidiaries from time to time as to improvements to the LSI
Processes or additional processes to supplement the LSI
Processes, which recommendation will be considered by FNT for
the benefit of the Permitted Subsidiaries.
4.3. MAINTENANCE OF CURRENT EQUIPMENT AND SOFTWARE. During the term
of this Agreement, FIS shall be responsible for maintaining
the computer hardware and software systems utilized by FNT for
the benefit of the Permitted Subsidiaries in their
implementation and use of the LSI Processes, including,
without limitation, all telephone and communication equipment
(such as routers, servers, etc.) utilized by FNT for the
benefit of the Permitted Subsidiaries (collectively, the "LSI
Process Equipment"). FNT for the benefit of the Permitted
Subsidiaries shall maintain the LSI Process Equipment in the
same condition (ordinary wear and tear excepted) and to the
same quality standards as was applicable to the LSI Process
Equipment on the effective date of this Agreement. Without
limiting the Services to be provided herein, FNT acknowledges
that, unless otherwise provided in this Agreement or agreed in
writing by the parties, FNT has no ownership right, title or
interest in the LSI Processes.
4.4. SALES SUPPORT SERVICES AND IMPLEMENTATION OF LSI PROCESSES FOR
THIRD PARTY CUSTOMERS. During the Term of this Agreement and
consistent with permitted practices under applicable state
insurance law, FIS shall provide FNT for the benefit of the
Permitted Subsidiaries support in connection with marketing of
products and services of FNT for the benefit of the Permitted
Subsidiaries that require the use by FNT for the benefit of
the Permitted Subsidiaries of any of the LSI Processes or the
implementation or integration of the LSI Processes with third
party customers of FNT for the benefit of the Permitted
Subsidiaries.
5. FNT OBLIGATIONS.
5.1. EXCLUSIVE USE OF FIS SERVICES. With respect to the LSI
Processes that FIS will provide to FNT for the benefit of the
Permitted Subsidiaries as of the Effective Date, FNT for the
benefit of the Permitted Subsidiaries agrees to use
exclusively the LSI Processes and above Services in the
Geographic Areas at all times during the Term of this
Agreement, subject in all cases to the termination provisions
set forth in this Agreement.
5.2. ACCESS TO TITLE PLANT. Following the date hereof, if FNT
builds or acquires a title plant with respect to a county
described in the Geographic Area, FNT agrees to provide access
to that plant to FIS on terms no less favorable to FIS than
contained in other title plant access agreements between FNT
and FIS, but in all cases upon commercially reasonable terms.
6. TERM; TERMINATION.
6.1. TERM. The term of the Agreement shall commence as of the date
hereof and continue until such time as FNT has built or
acquired a title plant with respect to all
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counties described in the Geographic Area and provided access
to such title plants to FIS on terms acceptable to FIS in all
such counties, or FIS has acquired on its own access to title
plants with respect to all counties described within the
Geographic Area (the "Term").
6.2. PARTIAL COUNTY TERMINATION. Notwithstanding any other
provision of this Agreement, FIS may upon at least thirty days
prior written notice to FNT terminate the license and Services
with respect to one or more particular counties described in
the Geographic Area after FIS has acquired title plant access
from FNT or another third party on terms acceptable to FIS.
6.3. TERMINATION. As applicable, the license and Services for a
particular county described in the Geographic Area or the
Agreement may be terminated prior to the expiration of the
Term as follows:
(a) the license and Services for one or more particular
counties described in the Geographic Area or the
Agreement, may be terminated at any time by mutual
agreement of the parties hereto;
(b) the license and Services for one or more particular
counties described in the Geographic Area may be
terminated at any time by FNT, if FIS breaches any
material warranty or fails to perform any material
obligation hereunder, in each case, with respect to
such county or counties affected, and such breach is
not remedied within 30 days after written notice
thereof to FIS that is in default, in which event the
obligation to provide the license and the Services
for such affected county or counties 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 FIS 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;
(c) the license and Services for one or more particular
counties described in the Geographic Area may be
terminated at any time by FIS, if FNT breaches any
material warranty or fails to perform any material
obligation owing hereunder, in each case, with
respect to the particular county or counties
affected, and such breach is not remedied within 30
days after written notice thereof to FNT, in which
event the obligation to provide the license and the
Services for such affected county or counties under
this Agreement shall terminate on the 20th business
day following the expiration of such 30-day cure
period; provided that if the breach or default is of
a nature that it cannot reasonably be cured within a
30-day period and FNT is actively pursuing a cure in
good faith, then no default shall be deemed to have
occurred so long as the default is cured as promptly
as reasonably possible and in any event prior to the
first anniversary of the occurrence of such default;
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(d) the Agreement may be terminated at any time by FIS,
if FNT shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts
become due, or shall (1) apply for or consent to the
appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its
property or assets, (2) make a general assignment for
the benefit of its creditors, (3) commence a
voluntary case under the federal Bankruptcy Code, (4)
file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement
or winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case
under the Bankruptcy Code or (6) take any company
action for the purpose of effecting any of the
foregoing, in which event the obligation to provide
the license and the Services under this Agreement
shall terminate immediately;
(e) the Agreement may be terminated at any time by FNT,
if FIS shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts
become due, or shall (1) apply for or consent to the
appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its
property or assets, (2) make a general assignment for
the benefit of its creditors, (3) commence a
voluntary case under the federal Bankruptcy Code, (4)
file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement
or winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case
under the Bankruptcy Code or (6) take any company
action for the purpose of effecting any of the
foregoing, in which event the obligation to provide
the license and the Services under this Agreement
shall terminate immediately;
(f) the license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated by FIS, upon 5 years'
prior written notice to FNT, which notice may not be
delivered prior to the 5th anniversary of the
Effective Date;
(g) the license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated by FNT, upon 5 years'
prior written notice to FIS, which notice may not be
delivered prior to the 5th anniversary of the
Effective Date;
(h) the license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated at any time by FNT if
there has been a change in control of FIS; 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 ultimate ownership interests in,
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or all or substantially all of the assets or business
of, FIS, other than a transaction in which no person
or entity, other than FIS or an entity controlled by
FIS, will have beneficial ownership, directly or
indirectly, of 50% or more of the ownership interests
of FIS or of the power to vote in the election of
directors; or
(i) the license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated upon 6 months prior
written notice by FIS to FNT if there has been a
change in control of FNT; it being understood, that
for purposes of this provision, "change of control"
means a reorganization, merger, share exchange or
consolidation, or sale or other disposition of more
than 50% of the voting capital stock in, or all or
substantially all of the assets or business of, FNT,
other than a transaction in which no person or
entity, other than FNT or an entity controlled by
FNT, will have beneficial ownership, directly or
indirectly, of 50% or more of the voting capital
stock of FNT or of the power to vote the election of
directors.
6.4. SURVIVAL. Notwithstanding anything to the contrary in this
Agreement, Section 7, 8, 9, 10, 11, and 16.10 shall survive
the expiration or termination of this Agreement
6.5. PERMITTED SUBSIDIARY TERMINATION. A license enjoyed by a
Permitted Subsidiary of FNT shall terminate without further
formality upon such entity's ceasing to be a Subsidiary of
FNT.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1. OWNERSHIP OF LSI PROCESSES AND DOCUMENTATION. From the date
the LSI Processes and Documentation is first disclosed to FNT,
and at all times thereafter, as between the parties, FIS
and/or its Subsidiaries shall be the sole and exclusive owners
of all right, title, and interest in and to the LSI Processes,
Documentation and all Modification, including, without
limitation, all intellectual property and other rights related
thereto. The parties acknowledge that this Agreement in no way
limits or restricts FIS and the FIS Subsidiaries from
developing or marketing on their own or for any third party in
the United States or any other country, the LSI Processes,
Documentation or Modifications, or any similar processes
(including, but not limited to, any modification, enhancement,
interface, upgrade, change and all software, source code,
blueprints, diagrams, flow charts, specifications, functional
descriptions or training materials relating thereto) without
payment of any compensation to FNT.
8. CONFIDENTIALITY.
8.1. CONFIDENTIALITY OBLIGATION. Proprietary Information (i) shall
be deemed the property of the disclosing party (or the party
for whom such data was collected or processed, if any), (ii)
shall be used solely for the purposes of administering and
otherwise implementing the terms of this Agreement and any
ancillary agreements, and (iii) shall be protected by the
receiving party in accordance with the terms of this Section.
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8.2. NON-DISCLOSURE COVENANT. Except as set forth in this Section,
neither party shall disclose the Proprietary Information of
the other party in whole or in part, including derivations, to
any third party. If the parties agree to a specific
nondisclosure period for a specific document, the disclosing
party shall xxxx the document with that nondisclosure period.
In the absence of a specific period, the duty of
confidentiality for LSI Processes and Documentation shall
extend in perpetuity. Proprietary Information shall be held in
confidence by the receiving party and its employees, and shall
be disclosed to only those of the receiving party's employees
and professional advisors who have a need for it in connection
with the administration and implementation of this Agreement.
In no event shall FNT disclose FIS Proprietary Information to
a Competitor of FIS. Each party shall use the same degree of
care and afford the same protections to the Proprietary
Information of the other party as it uses and affords to its
own Proprietary Information of a similar nature.
8.3. EXCEPTIONS. Proprietary Information shall not be deemed
proprietary and, subject to the carve-out below, the receiving
party shall have no obligation of nondisclosure with respect
to any such information which:
(a) is or becomes publicly known through no wrongful act,
fault or negligence of the receiving party;
(b) was disclosed to the receiving party by a third party
that was free of obligations of confidentiality to
the party providing the information;
(c) is approved for release by written authorization of
the disclosing party;
(d) was known to the receiving party prior to receipt of
the information;
(e) was independently developed by the receiving party
without access to or use of the Proprietary
Information of the disclosing party; or
(f) is publicly disclosed pursuant to a requirement or
request of a governmental agency, or disclosure is
required by operation of law.
Notwithstanding application of any of the foregoing
exceptions, in no event shall FIS treat information comprising
nonpublic personal information under the GLB Act as other than
Proprietary Information.
8.4. CONFIDENTIALITY OF THIS AGREEMENT; PROTECTIVE ARRANGEMENTS.
(a) The parties acknowledge that this Agreement contains
confidential infor-mation that may be considered
proprietary by one or both of the parties, and agree
to limit distribution of this Agreement to those
employees of FNT and FIS with a need to know the
contents of this Agreement or as required by law or
national stock exchange rule. In no event may this
Agreement be reproduced or copies shown to any third
parties (except counsel, auditors and professional
advisors) without the prior written consent of the
other party, except as may be necessary by reason of
legal, accounting, tax or regulatory requirements, in
which event FNT and FIS agree to exercise reasonable
diligence in limiting such disclosure to the minimum
necessary under the particular circumstances.
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(b) In addition, each party shall give notice to the
other party of any demands to disclose or provide
Proprietary Information of the other party under or
pursuant to lawful process prior to disclosing or
furnishing such Proprietary Information, and shall
cooperate in seeking reasonable protective
arrangements.
9. INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY.
9.1. INVOICING AND PAYMENT REQUIREMENTS. Within 30 days following
the end of each month, FNT shall prepare and remit to FIS a
schedule showing the fees which it owes FIS under Exhibit D,
along with the appropriate payment. FNT shall make all
payments to FIS by check, credit card or wire transfer of
immediately available funds to an account or accounts
designated by FIS. Payment in full shall not preclude later
dispute of charges or adjustment of improper payments.
9.2. PAST DUE AMOUNTS. Any amount not received or disputed by FIS
by the date payment is due shall be subject to interest on the
overdue balance at a rate equal to the prime rate as published
in the table money rates in the Wall Street Journal on the
date of payment (or the prior date on which the Wall Street
Journal was published if not published on the date of
payment), plus one percent from the due date, until paid,
applied to the outstanding balance from time to time. Any
amount paid but later deemed not to have been due, will be
repaid or credited with interest on the same terms.
9.3. CURRENCY. All fees and charges listed and referred to in this
Agreement are stated in and shall be paid in U.S. Dollars.
10. DISPUTE RESOLUTION.
10.1. DISPUTE RESOLUTION PROCEDURES. If, prior to the termination of
this Agreement or the license granted herein, and prior to
notice of termination given by either party to the other, a
dispute arises between FIS and FNT with respect to the terms
and conditions of this Agreement, or any subject matter
governed by this Agreement (other than disputes regarding a
party's compliance with the provisions of Sections 3 and/or
8), such dispute shall be settled as set forth in this
Section. If either party exercises its right to initiate the
dispute resolution procedures under this Section, then during
such procedure any time periods providing for termination of
the Agreement or curing any material breach pursuant to the
terms of this Agreement shall be suspended automatically,
except with respect to any termination or breach arising out
of FNT's failure to make any undisputed timely and complete
payments to FIS under this Agreement. At such time as the
dispute is resolved, if such dispute involved the payment of
monies, interest at a rate equal to the prime rate as
published in the table money rates in the Wall Street Journal
on the date the dispute is resolved (or the prior date on
which the Wall Street Journal was published if not published
on the date the dispute was resolved) plus one percent for the
period of dispute shall be paid to the party entitled to
receive the disputed monies to compensate for the lapsed time
between the date such disputed amount originally was to have
been paid (or was paid) through the date monies are paid (or
repaid) in
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settlement of the dispute. Disputes arising under Sections 3
or 8 may be resolved by judicial recourse or in any other
manner agreed by the parties.
10.2. Escalation Procedures.
(a) Each of the parties shall escalate and negotiate, in
good faith, any claim or dispute that has not been
satisfactorily resolved between the parties at the
level where the issue is discovered and has immediate
impact (excluding issues of title to work product,
which shall be initially addressed at the general
counsel level). To this end, each party shall
escalate any and all unresolved disputes or claims in
accordance with this Section at any time to persons
responsible for the administration of the
relationship reflected in this License Agreement. The
location, format, frequency, duration and conclusion
of these elevated discussions shall be left to the
discretion of the representatives involved. If such
parties do not resolve the underlying dispute within
ten (10) Days of its escalation to them, then either
party may notify the other in writing that he/she
desires to elevate the dispute or claim to the
President of FIS and the President of FNT or their
designated representative(s) for resolution.
(b) Upon receipt by a party of a written notice
escalating the dispute to the company president
level, the President of FIS and the President of FNT
or their designated representative(s) shall promptly
communicate with his/her counter party, negotiate in
good faith and use reasonable efforts to resolve such
dispute or claim. The location, format, frequency,
duration and conclusion of these elevated discussions
shall be left to the discretion of the
representatives involved. Upon agreement, such
representatives may utilize other alternative dispute
resolution procedures to assist in the negotiations.
If the parties have not resolved the dispute within
ten (10) Days after receipt of the notice elevating
the dispute to this level, either may once again
escalate the dispute to binding arbitration.
(c) All discussions and correspondence among the
representatives for purposes of these negotiations
shall be treated as Proprietary Information developed
for purposes of settlement, exempt from discovery and
production, which shall not be admissible in any
subsequent proceedings between the parties. Documents
identified in or provided with such communications,
which are not prepared for purposes of the
negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in such
subsequent proceeding.
10.3. ARBITRATION PROCEDURES. If a claim, controversy or dispute
between the parties with respect to the terms and conditions
of this Agreement, or any subject matter governed by this
Agreement (and not otherwise excepted), has not been timely
resolved pursuant to the foregoing escalation process, upon
notice either party may initiate binding arbitration of the
issue in accordance with the following procedures.
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(a) Either party may request arbitration by giving the
other party written notice to such effect, which
notice shall describe, in reasonable detail, the
nature of the dispute, controversy or claim. Such
arbitration shall be governed by the then current
version of the Commercial Arbitration Rules and
Mediation Procedures of the American Arbitration
Association. The Arbitration will be conducted in
Jacksonville, Florida in front of one mutually agreed
upon arbitrator.
(b) Each party shall bear its own fees, costs and
expenses of the arbitration and its own legal
expenses, attorneys' fees and costs of all experts
and witnesses. Unless the award provides otherwise,
the fees and expenses of the arbitration procedures,
including the fees of the arbitrator or arbitrators,
will be shared equally by the involved parties.
(c) Any award rendered pursuant to such arbitration shall
be final, conclusive and binding upon the parties,
and any judgment thereon may be entered and enforced
in any court of competent jurisdiction.
11. LIMITATION OF LIABILITY.
11.1. EXCEPT TO THE EXTENT ARISING FROM GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, BY REASON OF AN INDEMNITY OBLIGATION HEREUNDER OR
BY REASON OF A BREACH OF WARRANTY, EITHER PARTY'S LIABILITY
FOR ANY CLAIM OR CAUSE OF ACTION WHETHER BASED IN CONTRACT,
TORT OR OTHERWISE WHICH ARISES UNDER OR IS RELATED TO THIS
AGREEMENT SHALL BE LIMITED TO THE OTHER PARTY'S DIRECT
OUT-OFPOCKET DAMAGES, ACTUALLY INCURRED, WHICH UNDER NO
CIRCUMSTANCES SHALL EXCEED, IN THE AGGREGATE, THE AMOUNT PAID
BY FNT TO FIS UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
11.2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND WHATSOEVER OR THE CLAIMS OR DEMANDS MADE BY ANY THIRD
PARTIES, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
12. INDEMNIFICATION.
12.1. PROPERTY DAMAGE. Subject to Section 11 hereof, each party
agrees to indemnify, defend and hold harmless the other and
its officers, directors, employees, and affiliates (including,
where applicable, the FIS Subsidiaries and FNT Subsidiaries),
and agents from any and all liabilities, losses, costs,
damages and expenses (including reasonable attorneys' fees)
arising from or in connection with the damage, loss (including
theft) or destruction of any real property or tangible
personal property of the indemnified party resulting from the
actions or inactions of any employee, agent
11
or subcontractor of the indemnifying party insofar as such
damage arises out of or is ancillary to fulfilling its
obligations under this Agreement and to the extent such damage
is due to any negligence, breach of statutory duty, omission
or default of the indemnifying party, its employees, agents or
subcontractors.
12.2. INFRINGEMENT OF LSI PROCESSES. FIS agrees to defend at its own
expense, any claim or action brought by any third party
against FNT and/or against its officers, directors, and
employees and affiliates, for actual or alleged infringement
within the United States of any patent, copyright or other
intellectual property right (including, but not limited to,
misappropriation of trade secrets) based upon the LSI
Processes (except to the extent such infringement claim is
caused by FNT-specified Modifications to the LSI Processes
which could not have been made in a non-infringing manner) or
caused by the combination of LSI Processes with software or
hardware provided, specified or approved by FIS ("Indemnified
LSI Processes"). FNT, at its sole discretion and cost, may
participate in the defense and all negotiations for its
settlement or compromise. FIS further agrees to indemnify and
hold FNT, its officers, directors, employees and affiliates
harmless from and against any and all liabilities, losses,
costs, damages, and expenses (including reasonable attorneys'
fees) associated with any such claim or action incurred by
FNT. FIS shall conduct and control the defense of any such
claim or action and negotiations for its settlement or
compromise, by the payment of money. FIS shall give FNT, and
FNT shall give FIS, as appropriate, prompt written notice of
any written threat, warning or notice of any such claim or
action against FIS or FNT, as appropriate, or any other user
or any supplier of components of the Indemnified LSI
Processes, which could have an adverse impact on FNT's use of
same, provided FIS or FNT, as appropriate, knows of such claim
or action. If in any such suit so defended, all or any part of
the Indemnified LSI Processes (or any component thereof) is
held to constitute an infringement or violation of any other
party's intellectual property rights and is enjoined, FIS
shall at its sole option take one or more of the following
actions at no additional cost to FNT: (i) procure the right to
continue the use of the same without material interruption for
FNT; (ii) replace the same with non-infringing software; (iii)
modify said Indemnified LSI Processesso as to be
non-infringing; or (iv) take back the infringing Indemnified
LSI Processes and credit FNT with an amount equal to its
prepaid but unused license fees hereunder. The foregoing
represents the sole and exclusive remedy of FNT for
infringement or alleged infringement.
12.3. INFRINGEMENT OF FNT OUT OF SCOPE LICENSE AND SERVICES. FNT
agrees to defend at its own expense, any claim or action
brought by any third party against FIS and/or against its
officers, directors, and employees and affiliates, for actual
or alleged infringement within the United States of any
patent, copyright or other intellectual property right
(including, but not limited to, misappropriation of trade
secrets) based upon the FNT services on behalf of the
Permitted Subsidiaries in the Geographic Area that are outside
the permitted scope of the License and the Services
("Indemnified Out of Scope License and Services"). FIS, at its
sole discretion and cost, may participate in the defense and
all negotiations for its settlement or compromise. FNT further
agrees to indemnify and hold FIS, its officers, directors,
employees and affiliates harmless from and against any and all
liabilities, losses, costs, damages, and expenses (including
reasonable attorneys' fees) associated with any
12
such claim or action incurred by FIS. FNT shall conduct and
control the defense of any such claim or action and
negotiations for its settlement or compromise, by the payment
of money. FNT shall give FIS, and FIS shall give FNT, as
appropriate, prompt written notice of any written threat,
warning or notice of any such claim or action against FNT or
FIS, as appropriate, or any other user or any supplier of
components of the Indemnified Out of Scope License and
Services, provided FNT or FIS, as appropriate, knows of such
claim or action. If in any such suit so defended, all or any
part of the Indemnified Out of Scope License and Services (or
any component thereof) is held to constitute an infringement
or violation of any other party's intellectual property rights
and is enjoined, FNT shall at its sole option take one or more
of the following actions at no additional cost to FIS: (i)
procure the right to continue the use of the same without
material interruption for FIS; (ii) replace the same with
non-infringing software; or (iii) modify said Indemnified Out
of Scope License and Services as to be non-infringing. The
foregoing represents the sole and exclusive remedy of FNT for
infringement or alleged infringement.
12.4. DISPUTE RESOLUTION. The provisions of Section 12 shall apply
with respect to the submission of any claim for
indemnification under this Agreement and the resolution of any
disputes relating to such claim.
13. FORCE MAJEURE, TIME OF PERFORMANCE AND INCREASED COSTS.
13.1. FORCE MAJEURE.
(a) Neither party shall be held liable for any delay or
failure in performance of its obligations under this
Agreement from any cause which with the observation
of reasonable care, could not have been avoided -
which may include, without limitation, acts of civil
or military authority, government regulations,
government agencies, epidemics, war, terrorist acts,
riots, insurrections, fires, explosions, earthquakes,
hurricanes, tornadoes, nuclear accidents, floods,
power blackouts affecting facilities (the "Affected
Performance").
(b) Upon the occurrence of a condition described in
Section 13.1(a), the party whose performance is
affected shall give written notice to the other party
describing the Affected Performance, and the parties
shall promptly confer, in good faith, to agree upon
equitable, reasonable action to minimize the impact
on both parties of such condition, including, without
limitation, implementing disaster recovery
procedures. The parties agree that the party whose
performance is affected shall use commercially
reasonable efforts to minimize the delay caused by
the force majeure events and recommence the Affected
Performance. If the delay caused by the force majeure
event lasts for more than fifteen (15) Days, the
parties shall negotiate an equitable amendment to
this Agreement with respect to the Affected
Performance. If the parties are unable to agree upon
an equitable amendment within ten (10) Days after
such fifteen (15)-Day period has expired, then either
party shall be entitled to serve thirty (30) Days'
notice of termination on the other party with respect
to only such Affected Performance. The remaining
portion of the Agreement that does not involve the
Affected Performance shall
13
continue in full force and effect. FIS shall be
entitled to be paid for that portion of the Affected
Performance which it completed through the
termination date.
13.2. TIME OF PERFORMANCE AND INCREASED COSTS. FIS' time of
performance under this Agreement shall be adjusted, if and to
the extent reasonably necessary, in the event and to the
extent that (i) FNT fails to timely submit material data or
materials in the prescribed form or in accordance with the
requirements of this Agreement, (ii) FNT fails to perform on a
timely basis, the material functions or other responsibilities
of FNT described in this Agreement, (iii) FNT or any
governmental agency authorized to regulate or supervise FNT
makes any special request, which is affirmed by FNT and/or
compulsory on FIS, which affects FIS' normal performance
schedule, or (iv) FNT has modified the LSI Processes,
Documentation or Modifications in a manner affecting FIS'
burden. In addition, if any of the above events occur, and
such event results in an increased cost to FIS, FIS shall
estimate such increased costs in writing in advance and, upon
FNT's approval, FNT shall be required to pay any and all such
reasonable, increased costs to FIS upon documented
expenditure, up to 110% of the estimate.
14. NOTICES.
14.1. NOTICES. Except as otherwise provided under this Agreement or
in the Exhibits, all notices, demands or requests or other
communications required or permitted to be given or delivered
under this Agreement shall be in writing and shall be deemed
to have been duly given when received by the designated
recipient. Written notice may be delivered in person or sent
via reputable air courier service and addressed as set forth
below:
If to FNT: Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
If to FIS: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
14
14.2. CHANGE OF ADDRESS. The address to which such notices, demands,
requests, elections or other communications are to be given by
either party may be changed by written notice given by such
party to the other party pursuant to this Section.
15. WARRANTIES.
15.1. PERFORMANCE OF OBLIGATIONS. Each party represents and warrants
to the other that it shall perform its respective obligations
under this Agreement, including Exhibits and Schedules, in a
professional and workmanlike manner.
15.2. COMPLIANCE WITH LAW. FIS warrants that (i) it has the power
and corporate authority to enter into and perform this
Agreement, (ii) its performance of this Agreement does not and
will not violate any governmental law, regulation, rule or
order, contract, charter or by-law; (iii) it has sufficient
right, title and interest (or another Subsidiary of FIS has or
will grant it sufficient license rights) in the LSI Processes
to grant the licenses herein granted, and (iv) it has received
no written notice of any third party claim or threat of a
claim alleging that any part of the LSI Processes infringes
the rights of any third party in any of the United States. FNT
warrants that (i) it has the power and corporate authority to
enter into and perform this Agreement, (ii) its performance of
this Agreement does not and will not violate any governmental
law, regulation, rule or order, contract, charter or by-law,
(iii) it has received no written notice of any third party
claim or threat of a claim alleging that any part of the LSI
Processes infringes the rights of any third party in the
United States.
15.3. EXCLUSIVE WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND EACH PARTY AGREES THAT ALL
REPRESENTATIONS AND WARRANTIES THAT ARE NOT EXPRESSLY PROVIDED
IN THIS AGREEMENT ARE HEREBY EXCLUDED AND DISCLAIMED.
16. MISCELLANEOUS.
16.1. ASSIGNMENT. Except as set forth herein, neither party may
sell, assign, convey, or transfer the licenses granted
hereunder or any of such party's rights or interests, or
delegate any of its obligations hereunder without the written
consent of the other party. Any such consent shall be
conditioned upon the understanding that this Agreement shall
be binding upon the assigning party's successors and assigns.
Either party may assign this Agreement to any Subsidiary that
is not a Competitor except that the assigning party shall
remain responsible for all obligations under this Agreement
including the payment of fees. Notwithstanding anything
contained herein to the contrary, FNT may not assign this
Agreement to a Competitor.
15
16.2. SEVERABILITY. Provided FNT on behalf of the Permitted
Subsidiaries retains quiet enjoyment of the LSI Processes, if
any one or more of the provisions contained herein shall for
any reason be held to be unenforceable in any respect under
law, such unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be
construed as if such unenforceable provision or provisions had
never been contained herein, provided that the removal of such
offending term or provision does not materially alter the
burdens or benefits of either of the parties under this
Agreement or any Exhibit or Schedule, in which case the
unenforceable portion shall be replaced by one that reflects
the parties original intent as closely as possible while
remaining enforceable.
16.3. THIRD PARTY BENEFICIARIES. Except as set forth herein, the
provisions of this Agreement are for the benefit of the
parties and not for any other person. Should any third party
institute proceedings, this Agreement shall not provide any
such person with any remedy, claim, liability, reimbursement,
cause of action, or other right.
16.4. GOVERNING LAW; FORUM SELECTION; CONSENT OF JURISDICTION. This
Agreement will be governed by and construed under the laws of
the State of Florida, USA, without regard to principles of
conflict of laws. The parties agree that the only circumstance
in which disputes between them, not otherwise excepted from
the resolution process described in Section 109, will not be
subject to the provisions of Section 10 is where a party makes
a good faith determination that a breach of the terms of this
Agreement by the other party requires prompt and equitable
relief. Each of the parties submits to the personal
jurisdiction of any state or federal court sitting in
Jacksonville, Florida with respect to such judicial
proceedings. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety or to other
security that might be required of any party with respect
thereto. Any party may make service on the other party by
sending or delivering a copy of the process to the party to be
served at the address set forth in Section 14.1 above. Nothing
in this Section, however, shall affect the right of any party
to serve legal process in any other manner permitted by law or
in equity. Each party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner
provided by law or in equity.
16.5. EXECUTED IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
document.
16.6. CONSTRUCTION. The headings and numbering of sections in this
Agreement are for convenience only and shall not be construed
to define or limit any of the terms or affect the scope,
meaning or interpretation of this Agreement or the particular
section to which they relate. This Agreement and the
provisions contained herein shall not be construed or
interpreted for or against any party because that party
drafted or caused its legal representative to draft any of its
provisions.
16
16.7. ENTIRE AGREEMENT. This Agreement, including the Exhibits and
Schedules attached hereto and the agreements referenced herein
constitute the entire agreement between the parties, and
supersedes all prior oral or written agreements,
representations, statements, negotiations, understandings,
proposals, marketing brochures, correspondence and
undertakings related thereto.
16.8. AMENDMENTS AND WAIVERS. This Agreement may be amended only by
written agreement signed by duly authorized representatives of
each party. No waiver of any provisions of this Agreement and
no consent to any default under this Agreement shall be
effective unless the same shall be in writing and signed by or
on behalf of both parties. No course of dealing or failure of
any party to strictly enforce any term, right or condition of
this Agreement shall be construed as a waiver of such term,
right or condition. Waiver by either party of any default by
the other party shall not be deemed a waiver of any other
default. Notwithstanding the foregoing, at any time prior to
the Sale of FIS or any offering and sale to the public of any
shares or equity securities of FIS or any of its Subsidiaries
pursuant to a registration statement in the United States,
this Agreement may not be amended without the prior written
consent of Xxxxxx X. Xxx Equity Fund V, L.P. ("THL") and TPG
Partners III, L.P. ("TPG") if such amendment would affect
Sections 2.1, 3, 4, 5, 6, 7, 12, and 16.10, Exhibit D either
party's limitation of liability, FIS' right to terminate or
rights upon default by FNT or a FNT Subsidiary or this Section
16.8, in any manner materially adverse to the consolidated
business activities of the FIS Group (defined below), taken as
a whole, or FIS Group's costs of doing business, viewed on a
consolidated basis, provided that in no event shall any change
to Exhibits A, B, and C hereto require such prior written
consent unless such change would materially and adversely
affect in any manner FIS Group's consolidated business
activities, taken as a whole, or FIS Group's costs of doing
business, viewed on a consolidated basis. THL and TPG are
intended third party beneficiaries of this Agreement solely
with respect to this Section 16.8. "FIS Group" means FIS,
Subsidiaries of FIS, and each Person (defined below) that FIS
directly or indirectly controls (within the meaning of the
Securities Act) immediately after the Effective Date, and each
other Person that becomes an Affiliate of FIS after the
Effective Date. "Person" means an individual, a partnership, a
corporation, a limited liability company, an association, a
joint stock company, a trust, a joint venture, an
unincorporated organization, a governmental entity or any
department, agency, or political subdivision thereof.
16.9. REMEDIES CUMULATIVE. Unless otherwise provided for under this
Agreement, all rights of termination or cancellation, or other
remedies set forth in this Agreement, are cumulative and are
not intended to be exclusive of other remedies to which the
injured party may be entitled by law or equity in case of any
breach or threatened breach by the other party of any
provision in this Agreement. Use of one or more remedies shall
not bar use of any other remedy for the purpose of enforcing
any provision of this Agreement.
16.10. TAXES. All charges and fees to be paid under this Agreement
are exclusive of any applicable sales, use, service or similar
tax which may be assessed currently or in the future on the
LSI Processes or related services provided under this
Agreement. If a sales, use, services or a similar tax is
assessed on the LSI Processes or related services
17
provided to FNT for the benefit of the Permitted Subsidiaries
under this Agreement, FNT will pay directly, reimburse or
indemnify FIS for such taxes as well as any applicable
interest and penalties. FNT shall pay such taxes in addition
to the sums otherwise due under this Agreement. FIS shall, to
the extent it is aware of taxes, itemize them on a proper VAT,
GST or other invoice submitted pursuant to this Agreement. All
property, employment and income taxes based on the assets,
employees and net income, respectively, of FIS shall be FIS'
sole responsibility. The parties will cooperate with each
other in determining the extent to which any tax is due and
owing under the circumstances and shall provide and make
available to each other any withholding certificates,
information regarding the location of use of the LSI Processes
or provision of the services or sale and any other exemption
certificates or information reasonably requested by either
party.
16.11. PRESS RELEASES. The parties shall consult with each other in
preparing any press release, public announcement, news media
response or other form of release of information concerning
this Agreement or the transactions contemplated hereby that is
intended to provide such information to the news media or the
public (a "Press Release"). Neither party shall issue or cause
the publication of any such Press Release without the prior
written consent of the other party; except that nothing herein
will prohibit either party from issuing or causing publication
of any such Press Release to the extent that such action is
required by applicable law or the rules of any national stock
exchange applicable to such party or its affiliates, in which
case the party wishing to make such disclosure will, if
practicable under the circumstances, notify the other party of
the proposed time of issuance of such Press Release and
consult with and allow the other party reasonable time to
comment on such Press Release in advance of its issuance.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date by their duly authorized representatives.
FIDELITY NATIONAL TITLE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
18
EXHIBIT A
LSI PROCESSES
1. Centralized title insurance and escrow closing service
processing for refinance transactions.
2. Centralized home equity title insurance and closing service
processing.
3. Centralized recording services management and administration
processing.
4. Centralized tracking and servicing of loan subordination
requests.
i
EXHIBIT B
GEOGRAPHIC LOCATIONS
CALIFORNIA COUNTIES
Xxxxxx
Butte
Eldorado
Humboldt
Lassen
Marin
Mendocino
Monterey
Napa
Nevada
Placer
San Xxxxxxx
San Xxxx Obispo
Santa Xxxxx
San Mateo
Santa Xxxx
Xxxxxx
Sonoma
Xxxxxx
Yolo
Yuba
WASHINGTON COUNTIES - All
ii
EXHIBIT C
PERMITTED SUBSIDIARIES
Fidelity National Title Insurance Company (LSI Division)
Fidelity National Title Company (LSI Division)
Fidelity National Title Company of California (LSI Division)
Chicago Title Company (LSI Division)
Chicago Title Insurance Company (LSI Division)
iii
EXHIBIT D
FEES
During the Term of this Agreement, FNT shall remit to FIS all earnings, before
income taxes, which shall be prepared in accordance with U.S generally accepted
accounting principles consistently applied related to all operations of FNT with
respect to the Permitted Subsidiaries in the Geographic Area using any of the
LSI Processes or Services.
Upon reasonable advance notice, FNT shall permit FIS to perform audits of FNT's
records only with respect to calculating the above earnings, before income
taxes. Such audits shall be conducted during FNT's regular office hours and
without disruption to FNT's business operations and shall be performed at FIS'
sole expenses.
iv
