Exhibit 10.28
TEAM SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of the __ day of
______________, 2004 ("Effective Date") and is made by and between ROCKY
MOUNTAIN SUPPORT SERVICES, INC., an Arizona corporation, ("RMSS") and FIDELITY
NATIONAL TAX SERVICE, INC., a California corporation ("Licensee").
1. DEFINITIONS.
As used in this Agreement:
1.1 "ASSISTANCE" shall mean installation, conversion planning,
conversion, consulting assistance, workshops, training or education
classes performed by RMSS, or other functions mutually agreed to be
"Assistance" by Licensee and RMSS.
1.2 "BASE MODIFICATION" shall mean any Modification which RMSS, in its
sole discretion, has incorporated into the base version of the RMSS
Software which RMSS makes available to itself and other subsidiaries
of Fidelity National Financial, Inc. ("FNF").
1.3 "COMPETITOR" shall mean a natural or legal person offering a product
that competes with RMSS Software.
1.4 "CUSTOM MODIFICATION" shall mean any Modification to the RMSS
Software other than a Base Modification.
1.5 "DAYS" shall mean calendar days, unless otherwise specified.
1.6 "DEFECT" shall mean any failure, malfunction, defect or
non-conformity in the RMSS Software that prevents the RMSS Software
from operating and performing in any material respect in accordance
with the Documentation.
1.7 "DOCUMENTATION" shall mean RMSS's standard operating instructions
relating to the RMSS Software, consisting of one copy of the object
code form of the RMSS Software; a copy of manuals consisting of
instructions and procedures for systems and operations personnel and
end users of RMSS Software, if any, and related documentation, if
any. RMSS will deliver the Documentation to Licensee in paper form,
on CD ROM or electronically, at RMSS's discretion (except that RMSS
Software shall be delivered on machine readable media). Licensee
acknowledges that not all items of Documentation are available in
all forms of media. RMSS shall have the right to change the medium
upon which the Documentation is
1
______ initials ______ initials
delivered to Licensee without notice to Licensee. Upon electronic
delivery of Documentation, any obligation of RMSS to deliver
multiple numbers of copies of such Documentation to Licensee shall
have no further force or effect.
1.8 "ESCALATION PROCEDURES" shall mean the procedures set forth in
Section 10.3 of this Agreement.
1.9 "INSTALLATION SITE" shall mean the location at which the RMSS
Software is installed and which is owned or controlled by Licensee,
or a Licensee contractor (who is not a Competitor and who has
executed a nondisclosure agreement consistent with the terms of this
Agreement) providing use of systems to Licensee, and which is
located in the United States. The initial Installation Site address
is listed in Section 2 of Exhibit A.
1.10 "LICENSEE SERVER SOFTWARE" shall mean those client-server based
applications set forth in Section 1.3 of Exhibit A hereto.
1.11 "MAINTENANCE" shall mean the services described in Exhibit B hereto.
1.12 "MAINTENANCE RELEASE" shall mean the current Release of the RMSS
Software and the immediately prior Release (provided that such
Releases have been made available to Licensee), and shall also
include, at any given time, each Release delivered to Licensee
within the prior two years.
1.13 "MODIFICATION" shall mean any customization, enhancement,
modification or change made to the RMSS Software authored by or for
RMSS under this Agreement.
1.14 "PC SOFTWARE" shall mean those personal computer-based applications
developed by RMSS that are set forth in Section 1.2 of Exhibit A.
1.15 "PROPRIETARY INFORMATION" shall mean all information disclosed by or
for Licensee or RMSS to the other during the negotiations hereof
and/or learned by reason of the relationship established hereunder
or pursuant hereto, including, without limitation, the RMSS
Software, Documentation, Releases, Modifications and all
information, data and designs related thereto. Information relating
to each party's business, plans, affiliates or customers shall also
be deemed "Proprietary Information" for purposes of the Agreement.
"Proprietary Information" shall also include all "non-public
personal information" as defined in Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C. Section 6801, et seq.) and the
implementing regulations thereunder (collectively, the "GLB Act"),
as the same may be amended from time to time, that RMSS receives
from or at the direction of Licensee and that concerns any of
Licensee's "customers" and/or "consumers" (as defined in the GLB
Act).
2
______ initials ______ initials
1.16 "RELEASE" shall mean the Base Modifications, and other new versions,
corrections, revisions, updates, modifications and enhancements to
the RMSS Software and related Documentation.
1.17 "SERVER" shall mean a logical server that may include one (1) or
more physical servers.
1.18 "RMSS AFFILIATE" shall mean any majority-owned, direct or indirect
subsidiary of RMSS, as from time to time constituted.
1.19 "RMSS SOFTWARE" shall mean the object code and/or Source Code of any
program or part of a program as described in Exhibit A licensed
hereunder to Licensee but including in all events a product known
between the parties as TEAM. RMSS Software includes all Base
Modifications, all Modifications authored by or for RMSS, and all
Releases issued during the term of Maintenance under this Agreement.
1.20 "SOURCE CODE" of RMSS Software shall mean a copy of the source code
(or comparable high level coding) for the RMSS Software, if and to
the extent RMSS has or retains any such code, including any
annotations therein, certified by RMSS to Licensee, upon delivery to
Licensee, as an accurate copy of such source code for RMSS Software
as RMSS has in its possession.
1.21 "THIRD PARTY SOFTWARE" shall mean those third party applications
provided by RMSS that are set forth in Section 1.4 of Exhibit A.
1.22 "USE LIMITATIONS" shall mean the use by Licensee (i) of the RMSS
Software by no more than the number of Users specified herein and
(ii) of the Licensee Server Software simultaneously on no more than
the number of Workstations licensed herein.
1.23 "USER" shall mean an individual authorized to use the Licensee
Server Software.
1.24 "WORKSTATION" shall mean any personal computer or computer terminal
on which use of Licensee Server Software is authorized.
2. GRANT OF LICENSE.
2.1 GRANT. Subject to Licensee's full payment, as due, of fees listed in
Exhibit C, RMSS hereby grants to Licensee, and Licensee accepts from
RMSS, a world-wide nonexclusive, perpetual, irrevocable right and
object code license (except as otherwise provided for in Section 3
below) to use the RMSS Software and Documentation at the
Installation Site(s), subject to the restrictions and obligations
set forth herein.
3
______ initials ______ initials
3. SOURCE CODE DELIVERY
3.1 DUTY TO DELIVER. Under the circumstances listed in Section 3.2
below, solely for purposes of integration, maintenance, modification
and enhancement of Licensee's installation(s) of RMSS Software, RMSS
shall promptly deliver to Licensee a copy of Source Code, which
shall be subject to all of the license terms and restrictions
applicable to the RMSS Software.
3.2 CONDITIONS. RMSS's duty of delivery of Source Code as described
above shall be immediately due and enforceable in equity upon any of
these circumstances:
(a) RMSS has given notice to Licensee under terms of Maintenance
that RMSS shall cease, or RMSS has ceased, (i) providing
Maintenance generally or (ii) supporting any part of RMSS
Software, and in the event of notice of future termination,
such termination (whenever notice is given) shall be effective
within twelve months.
(b) RMSS shall apply for or consent to the appointment of a
receiver, trustee, or liquidator of all or a substantial part
of its assets, file a voluntary petition in bankruptcy, make a
general assignment for the benefit of creditors, file a
petition or an answer seeking reorganization or arrangement
with creditors or take advantage of any insolvency law, or if
an order, judgment or decree shall be entered by any court of
competent jurisdiction, on the application of a creditor,
adjudicating RMSS as bankrupt or insolvent or approving a
petition seeking reorganization of RMSS or appointing a
receiver, trustee, or liquidator of RMSS or of all or
substantial part of its assets, and such order, judgment or
decree shall continue unstayed and in effect for any period of
thirty (30) consecutive days.
(c) RMSS shall be in breach of any material covenant herein or
under Maintenance which, following notice of breach in
reasonable detail from Licensee, is not cured within thirty
(30) days. To the extent the breach relates to Maintenance on
a specific module or separable component of RMSS Software, the
duty of Source Code delivery shall be limited to the Source
Code for such specific module or separable component.
(d) Licensee shall have requested development or integration
services with respect to RMSS Software which RMSS is unable or
unwilling to provide or as to which the parties cannot timely
come to commercial terms.
(i) To the extent the integration or development relates to
a specific module or separable component of RMSS
Software, the duty of Source Code delivery shall be
limited to the Source Code for such specific module or
separable component.
4
______ initials ______ initials
(ii) In the event of delivery of Source Code by RMSS under
this subsection (d), upon Licensee's completion of its
development or integration effort, equating generally to
the same scope of work that RMSS was requested to
perform but did not perform, it will provide to RMSS a
copy of the source code for the development or
enhancement, including any annotations therein,
certifying same as complete and accurate and, without
further formality, RMSS shall be deemed granted a
license to use that source code developed by Licensee or
its non-Competitor contractors, solely for maintenance
or further development of the RMSS Software as
implemented for Licensee and for no other use or
beneficiary.
(iii) Six (6) months following the delivery by Licensee to
RMSS of source code for Licensee's developments or
enhancements under Section 3.2(d)(ii), RMSS may request
that Licensee certify, and Licensee will promptly
certify to RMSS, that Licensee has destroyed all copies
of (x) Source Code delivered to it by RMSS 3.2(d) and
(y) all copies of the source code for Licensee's
development or enhancement - except two hard copy prints
of source code for Licensee's development or enhancement
for proof of authorship.
(iv) Licensee's right to obtain access to Source Code
pursuant to this Section 3.2(d) may be invoked at any
time and from time to time, regardless of the continuity
of Maintenance.
4. SOFTWARE USE RESTRICTIONS.
4.1 RESTRICTIONS ON RMSS SOFTWARE.
(a) Licensee may not use the RMSS Software in a service bureau or
in a time share arrangement.
(b) Licensee may not sell, lease, assign, transfer, distribute or
sublicense the RMSS Software or Documentation, to any party
that is not a (direct or indirect) subsidiary of Licensee.
Licensee may not sell, lease, assign, transfer, distribute or
sublicense the Source Code to any person or entity at any
time.
(c) Licensee shall use RMSS Software subject to the Use
Limitations.
(d) Licensee will not make copies, or similar versions of the RMSS
Software or any part thereof without the prior written consent
of RMSS, except in
5
______ initials ______ initials
the process of contemplated use, for administrative, archival
or disaster recovery backup, and as expressly provided
otherwise herein.
(e) Licensee may not provide copies of the RMSS Software to any
person, firm, or corporation not permitted hereunder except as
permitted under Sections 4.1(b) and (d) above, and except as
to Licensee's non-Competitor contractors or subcontractors who
have executed nondisclosure terms consistent with the
confidentiality terms herein.
(f) Licensee shall not allow any third party to use or have access
to the RMSS Software for any purpose without RMSS's prior
written consent except as permitted under Sections 4.1 (b) and
(d) above, and except as to Licensee's non-Competitor
contractors or subcontractors who have executed nondisclosure
terms consistent with the confidentiality terms herein,.
(g) Licensee agrees not to disclose, decompile, disassemble or
reverse engineer the RMSS Software.
4.2 ADDITIONAL RESTRICTIONS ON PC SOFTWARE.
(a) Except as specifically set forth herein, all other
restrictions on use, copying or disclosure of the RMSS
Software and Licensee's agreement to maintain the
confidentiality thereof shall apply to the PC Software and its
Documentation.
(b) Licensee may not modify the PC Software (although RMSS may do
so on Licensee's behalf.)
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 OWNERSHIP OF RMSS SOFTWARE AND DOCUMENTATION. From the date the RMSS
Software and Documentation is first disclosed to Licensee, and at
all times thereafter, as between the parties, RMSS and its licensors
shall be the sole and exclusive owners of all right, title, and
interest in and to the RMSS Software, Documentation and all
Modifications, including, without limitation, all intellectual
property and other rights related thereto. The parties acknowledge
that this Agreement in no way limits or restricts RMSS and the RMSS
Affiliates from developing or marketing on their own or for any
third party in the United States or any other country, the RMSS
Software, Documentation or Modifications, or any similar software
(including, but not limited to, any modification, enhancement,
interface, upgrade, change and all software, source code,
blueprints, diagrams, flow charts, specifications, functional
descriptions or training materials relating thereto) without payment
of any compensation to Licensee, or any notice to Licensee.
6
______ initials ______ initials
5.2 DEVELOPMENT SERVICES. Licensee may from time to time wish to augment
the RMSS product with additional functionality or utility, or to
integrate it with Licensee systems from other sources, and for such
purposes may request the provision of development services from
RMSS.
6. CONFIDENTIALITY.
6.1 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 6.
6.2 NON-DISCLOSURE COVENANT. Except as set forth in this Section,
neither party shall disclose the Proprietary Information of the
other party in whole or in part, including derivations, to any third
party. If the parties agree to a specific nondisclosure period for a
specific document, the disclosing party shall xxxx the document with
that nondisclosure period. In the absence of a specific period, the
duty of confidentiality for (a) RMSS Software, Source Code and
related Documentation shall extend in perpetuity and (b) with
respect to any other Proprietary Information shall extend for a
period of (5) five years from disclosure. Proprietary Information
shall be held in confidence by the receiving party and its
employees, and shall be disclosed to only those of the receiving
party's employees and professional advisors who have a need for it
in connection with the administration and implementation of this
Agreement. In no event shall Licensee disclose RMSS Proprietary
Information to a Competitor of RMSS. 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.
6.3 EXCEPTIONS. Proprietary Information shall not be deemed proprietary
and, subject to the carve-out below, the receiving party shall have
no obligation of nondisclosure with respect to any such information
which:
(i) is or becomes publicly known through no wrongful act, fault or
negligence of the receiving party;
(ii) was disclosed to the receiving party by a third party that was
free of obligations of confidentiality to the party providing
the information;
(iii) is approved for release by written authorization of the
disclosing party;
(iv) was known to the receiving party prior to receipt of the
information; or
(iv) is publicly disclosed pursuant to a requirement or request of
a governmental agency, or disclosure is required by operation
of law.
7
______ initials ______ initials
Notwithstanding application of any of the foregoing exceptions, in
no event shall RMSS treat as other than Proprietary Information,
information comprising nonpublic personal information under the GLB
Act.
6.4 CONFIDENTIALITY OF THIS AGREEMENT; PROTECTIVE ARRANGEMENTS.
(a) The parties acknowledge that this Agreement contains
confidential information that may be considered proprietary by
one or both of the parties, and agree to limit distribution of
this Agreement to those employees of Licensee and RMSS 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 Licensee and RMSS agree to
exercise reasonable diligence in limiting such disclosure to
the minimum necessary under the particular circumstances.
(b) In addition, each party shall give notice to the other party
of any demands to disclose or provide Proprietary Information
of the other party under or pursuant to lawful process prior
to disclosing or furnishing such Proprietary Information, and
shall cooperate in seeking reasonable protective arrangements.
7. CONTINUING UNDERTAKINGS.
During the duration of the license granted hereunder, RMSS shall
offer Maintenance for the RMSS Software for the fees set forth in
Exhibit C hereto. A description of Maintenance services is set forth
in Exhibit B hereto. Any related professional services shall be
performed pursuant to further agreement between the parties.
8. INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY.
8.1 INVOICING AND PAYMENT REQUIREMENTS. RMSS shall invoice for such fees
described in Exhibit C hereto as well as for any expenses and any
other applicable charges incurred and owing hereunder. In accordance
with this Section 8.1, Licensee shall pay RMSS the invoiced amount
in full on or prior to the thirty (30) Days after Licensee's receipt
of such invoice unless Licensee notifies RMSS within such period
that it is in good faith disputing RMSS's invoice. Licensee shall
make all payments to RMSS by check, credit card or wire transfer of
immediately available funds to an account or accounts designated by
RMSS. Payment in full shall not preclude later dispute of charges or
adjustment of improper payments.
8
______ initials ______ initials
8.2 PAST DUE AMOUNTS. Any amount not received or disputed by Licensee 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.
8.3 CURRENCY. All fees and charges listed and referred to in this
Agreement are stated in and shall be paid in U.S. Dollars.
9. ASSISTANCE.
9.1 BASIS FOR ASSISTANCE. Assistance, except to the extent included in
Maintenance, is not included in this Agreement. If Licensee desires to
purchase Assistance from RMSS or a RMSS Affiliate, such Assistance shall
be provided pursuant to separate agreement.
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
RMSS and Licensee with respect to the terms and conditions of this
Agreement, or any subject matter governed by this Agreement (other than
disputes regarding a party's compliance with the provisions of Sections 4
and/or 6), such dispute shall be settled as set forth in this Section 10.
If either party exercises its right to initiate the dispute resolution
procedures under this Section 10, 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 Licensee's failure to make any undisputed timely and complete
payments to RMSS under this Agreement. At such time as the dispute is
resolved, if such dispute involved the payment of monies, interest at a
rate equal to the prime rate as published in the table money rates in the
Wall Street Journal on the date the dispute is resolved (or the prior date
on which the Wall Street Journal was published if not published on the
date the dispute was resolved) plus one percent for the period of dispute
shall be paid to the party entitled to receive the disputed monies to
compensate for the lapsed time between the date such disputed amount
originally was to have been paid (or was paid) through the date monies are
paid (or repaid) in settlement of the dispute. Disputes
9
______ initials ______ initials
arising under Sections 4 or 6 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 pursuant to Section 10.2(b) following)
that has not been satisfactorily resolved by the Presidents of
the particular business units or divisions involved. To this
end, each party shall escalate any and all unresolved disputes
or claims in accordance with this Section 10.2 at any time to
persons responsible for the administration of the relationship
reflected in this TEAM Software 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 the President
of RMSS and the President of Licensee 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 RMSS
and the President of Licensee 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
______ initials ______ initials
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.
(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.
10.5 CONTINUATION OF SERVICES. Unless RMSS initiates an action for
Licensee's failure to make timely and complete payment of undisputed
amounts claimed due to RMSS, RMSS will continue to provide
Maintenance under the Maintenance services agreement, and unless
Licensee is unable to lawfully use the RMSS Software and
Modifications thereto, Licensee will continue to make payments of
undisputed amounts to RMSS, in accordance with this Agreement,
notwithstanding a dispute between the parties relating hereto or
otherwise.
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-OF-
11
______ initials ______ initials
POCKET DAMAGES, ACTUALLY INCURRED, WHICH UNDER NO CIRCUMSTANCES
SHALL EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY LICENSEE TO RMSS
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.
11.3 LICENSEE SOFTWARE. RMSS has no obligation or liability, either
express or implied, with respect to the compatibility of RMSS
Software with any other software unless provided or specified by
RMSS including, but not limited to, Licensee software and/or
Licensee-provided third party software.
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 RMSS Affiliates and Licensee affiliates), and agents from any
and all liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees) arising from or in connection with the
damage, loss (including theft) or destruction of any real property
or tangible personal property of the indemnified party resulting
from the actions or inactions of any employee, agent or
subcontractor of the indemnifying party insofar as such damage
arises out of or is ancillary to fulfilling its obligations under
this Agreement and to the extent such damage is due to any
negligence, breach of statutory duty, omission or default of the
indemnifying party, its employees, agents or subcontractors.
12.2 INFRINGEMENT OF RMSS SOFTWARE. RMSS agrees to defend at its own
expense, any claim or action brought by any third party against
Licensee 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 RMSS Software (except to the extent such infringement
claim is caused by Licensee-specified Custom Modifications to the
RMSS Software which could not have been made in a non-infringing
manner) or caused by the combination of RMSS Software with software
or hardware not provided, specified or approved by RMSS, or based
upon the Third Party Software ("Indemnified RMSS Software").
Licensee, at its sole discretion and cost, may participate in the
defense and all
12
______ initials ______ initials
negotiations for its settlement or compromise. RMSS further agrees
to indemnify and hold Licensee, 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 Licensee. RMSS shall conduct and control the defense of any such
claim or action and negotiations for its settlement or compromise,
by the payment of money. RMSS shall give Licensee, and Licensee
shall give RMSS, as appropriate, prompt written notice of any
written threat, warning or notice of any such claim or action
against RMSS or Licensee, as appropriate, or any other user or any
supplier of components of the Indemnified RMSS Software, which could
have an adverse impact on Licensee's use of same, provided RMSS or
Licensee, as appropriate, knows of such claim or action. If in any
such suit so defended, all or any part of the Indemnified RMSS
Software (or any component thereof) is held to constitute an
infringement or violation of any other party's intellectual property
rights and is enjoined, RMSS shall at its sole option take one or
more of the following actions at no additional cost to Licensee: (i)
procure the right to continue the use of the same without material
interruption for Licensee; (ii) replace the same with non-infringing
software; (iii) modify said Indemnified RMSS Software so as to be
non-infringing; or (iv) take back the infringing Indemnified RMSS
Software and credit Licensee with an amount equal to its purchase
price. The foregoing represents the sole and exclusive remedy of
Licensee for infringement or alleged infringement.
12.3 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, 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
13
______ initials ______ initials
minimize the impact on both parties of such condition,
including, without limitation, implementing disaster recovery
procedures. The parties agree that the party whose performance
is affected shall use commercially reasonable efforts to
minimize the delay caused by the force majeure events and
recommence the Affected Performance. If the delay caused by
the force majeure event lasts for more than fifteen (15) Days,
the parties shall negotiate an equitable amendment to this
Agreement with respect to the Affected Performance. If the
parties are unable to agree upon an equitable amendment within
ten (10) Days after such fifteen (15)-Day period has expired,
then either party shall be entitled to serve thirty (30) Days'
notice of termination on the other party with respect to only
such Affected Performance. The remaining portion of the
Agreement that does not involve the Affected Performance shall
continue in full force and effect. RMSS 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. RMSS's time of performance
under this Agreement shall be adjusted, if and to the extent
reasonably necessary, in the event and to the extent that (i)
Licensee fails to timely submit material data or materials in the
prescribed form or in accordance with the requirements of this
Agreement, (ii) Licensee fails to perform on a timely basis, the
material functions or other responsibilities of Licensee described
in this Agreement, (iii) Licensee or any governmental agency
authorized to regulate or supervise Licensee makes any special
request, which is affirmed by Licensee and/or compulsory on RMSS,
which affects RMSS's normal performance schedule, or (iv) Licensee
has modified the RMSS Software in a manner affecting RMSS's burden.
In addition, if any of the above events occur, and such event
results in an increased cost to RMSS, RMSS shall estimate such
increased costs in writing in advance and, upon Licensee's approval,
Licensee shall be required to pay any and all such reasonable,
increased costs to RMSS 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:
14
______ initials ______ initials
If to Licensee: Fidelity National Tax Service, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
If to RMSS: Rocky Mountain Support Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
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. For as long as RMSS is providing Maintenance to
Licensee for the RMSS Software, RMSS warrants and represents that
the RMSS Software and the Custom Modifications, as delivered to
Licensee and the Base Modifications, will perform in all material
respects in accordance with the respective Documentation, in concert
and otherwise.
15.2 PERFORMANCE OF OBLIGATIONS. Each party represents and warrants to
the other that it shall perform its respective obligations under
this Agreement, including Exhibits and Schedules, in a professional
and workmanlike manner.
15.3 COMPLIANCE WITH LAW. RMSS 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 in the
RMSS Software to grant the licenses herein granted, (iv) it has
received no written notice of any third party claim or threat of a
claim alleging that any part of the RMSS Software infringes the
rights of any third party in any of the United
15
______ initials ______ initials
States, and (v) each item of RMSS Software provided by or for RMSS
to Licensee shall be delivered free of undisclosed trapdoors, Trojan
horses, time bombs, time outs, spyware, viruses or other code which,
with the passage of time, in the absence of action or upon a
trigger, would interfere with the normal use of, or access to, any
file, datum or system.
15.4 EXCLUSIVE WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
AND EACH PARTY AGREES THAT ALL REPRESENTATIONS AND WARRANTIES THAT
ARE NOT EXPRESSLY PROVIDED IN THIS AGREEMENT ARE HEREBY EXCLUDED AND
DISCLAIMED.
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 direct or
indirect subsidiary that is not a Competitor except that the
assigning party shall remain responsible for all obligations under
this Agreement including the payment of fees. Notwithstanding
anything contained herein to the contrary, Licensee may not assign
this Agreement to a Competitor.
16.2 SEVERABILITY. Provided Licensee retains quiet enjoyment of the RMSS
Software including Custom Modifications and Base Modifications, if
any one or more of the provisions contained herein shall for any
reason be held to be unenforceable in any respect under law, such
unenforceability shall not affect any other provision 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.
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
______ initials ______ initials
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 10, 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 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.
16.7 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
17
______ initials ______ initials
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.
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 RMSS Software or
related services provided under this Agreement. If a sales, use,
services or a similar tax is assessed on the RMSS Software or
related services provided to Licensee under this Agreement, Licensee
will pay directly, reimburse or indemnify RMSS for such taxes as
well as any applicable interest and penalties. Licensee shall pay
such taxes in addition to the sums otherwise due under this
Agreement. RMSS 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 RMSS shall be
RMSS's sole responsibility. The parties will cooperate with each
other in determining the extent to which any tax is due and owing
under the circumstances and shall provide and make available to each
other any withholding certificates, information regarding the
location of use of the RMSS Software 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.
18
______ initials ______ initials
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date by their duly authorized representatives.
FIDELITY NATIONAL TAX SERVICE, INC. ROCKY MOUNTAIN SUPPORT SERVICES, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------- -------------------------------
19
______ initials ______ initials
