EXHIBIT 10.12
NOVATION
STARTERS REPOSITORY ACCESS AGREEMENT
This Starters Repository Access Agreement (this "Agreement"), effective as of
___________________, 2005 (the "Effective Date"), between FIDELITY NATIONAL
TITLE GROUP, INC., a Delaware corporation with its principal place of business
at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("FNT"), for itself on behalf of
its direct and indirect subsidiaries; and FIDELITY NATIONAL INFORMATION
SERVICES, INC., a Delaware corporation with its principal place of business at
000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("FIS"), on behalf of those of its
direct and indirect subsidiaries as are listed on Exhibit A hereto (including
any amended Exhibit A) (each a "Customer" and collectively, the "Customers").
FNT and FIS shall hereinafter be referred to as a "Party" and collectively, as
the "Parties."
WITNESSETH:
WHEREAS, the Customers wish to have access to certain records and/or
data (the "Starters" as defined below) owned by FNT or its subsidiaries; and
WHEREAS, FNT is willing to provide such access, subject to the terms and
conditions set forth herein; and
WHEREAS, FIS previously entered into an FNF Starters Repository Agreement
dated March 4, 2005 (the "FNF Agreement") with Fidelity National Financial,
Inc., a Delaware corporation ("FNF"), as the parent company of FNT and its
subsidiaries, for access to the Starters by the Customers; 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 Starters, as more
particularly described herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. CERTAIN DEFINITIONS.
"Customer" means Property Insight, LLC, a California limited liability company
("PI"), and each user identified on Exhibit A so long as such user is a direct
or indirect subsidiary of FIS; it being understood that, upon 30 days' prior
written notice, FIS may from time to time amend Exhibit A to add one or more of
its other direct or indirect subsidiaries of FIS and such added subsidiary shall
become a "Customer" hereunder effective as of the 30th day after such prior
notice is delivered to FNT.
1
"Issuing Agency Agreement" is an agreement pursuant to which an entity is
designated as a title agent, authorized to write title business for a principal.
"L&Vs" consist of that portion of a Starter record related to the legal
description of the real property and vesting information of the owners thereof.
"L&V Retrieval" means any instance where an L&V is selected by a Customer for
viewing or data retrieval in connection with a particular Starter record. A fee
is incurred, as set forth below, upon each Successful Retrieval.
"Starters" consist of electronic copies of previously issued title products,
which may include policies, commitments, preliminary reports, guarantees and
binders as well as some electronic data elements of the information contained in
such electronic copies.
A "Starter Retrieval" means any instance when a Starter is selected by a
Customer for viewing or data retrieval, which may include an image of the
applicable previously issued title products or any electronic data elements from
such products. A fee is incurred, as set forth below, upon each Successful
Retrieval.
The "Starter Repository" is a database of certain Starters selected by FNT for
inclusion.
A "Successful Retrieval" means: (1) in connection with a L&V Retrieval, the
return of data containing a legal description and vesting in a format generally
recognized in the geographic area where the property is located; (2) in
connection with a Starter Retrieval, the return of a product image and/or data
in a form and containing those elements generally contained on such product in
the geographic area where the property is located.
2. ACCESS.
(a) Access. FNT hereby grants to each Customer non-exclusive access to the
Starter Repository, subject to the provisions hereof. Customers may, with
technical information from FNT available on request, create proprietary means of
technical access to the Starter Repository (an "Access Program"), subject
however to compliance with any security protocols or technology that FNT may
reasonably specify. Using such Access Program, Customers may access the Starter
Repository, provided, however, that FNT shall have no duty to pay for, support,
or update any such Access Program. In addition, FNT may from time to time
modify, update or otherwise revise the Starter Repository database structure or
other means of accessing the Starter Repository, provided that in the event of
any of such modification, update or revision, FNT shall provide FIS with
reasonably detailed access specifications so that FIS can create and/or modify
its Access Program, if any. FNT may restrict, or may be restricted from
allowing, a Customer from using certain records and materials in the Starter
Repository. It is understood and agreed that, during the first year of this
Agreement, FNT shall provide access availability to the Starter Repository in a
nature and quality reasonably comparable to the access availability provided by
FNT during the year immediately prior to the execution of this Agreement.
(b) Format. The data and materials included in the Starter Repository are
maintained in one or more formats or media determined from time to time by FNT
and FNT reserves the
2
right to modify any such format or medium from time to time, subject to the
notification provisions contained in Section 2(d).
(c) Security. In connection with a Customer's access to the Starter
Repository provided hereunder, FNT may establish identification codes and
password security. In such event, a Customer shall be responsible for choosing
one or more secure passwords and for keeping all passwords secret. In the event
that a Customer becomes aware of a security breach or unauthorized access to the
Starter Repository, such Customer agrees to contact FNT immediately upon
discovering such a breach. Such Customer is responsible for the results of any
unauthorized access caused by such Customer or resulting from such Customer's
failure to maintain appropriate security. In addition, in the event of any such
unauthorized access or security breach by such Customer, the Customer shall be
liable for all costs by FNT incurred as a result thereof, until notice of such a
security breach is given to FNT, unless the Customer can demonstrate that it
took commercially reasonable precautions to secure and safe-keep its access to
the Starter Repository. FNT reserves the right to check the security of Customer
passwords, if password security is implemented. In such event, if a Customer
password is found to be unsecured, FNT shall immediately notify Customer and
work with Customer to implement an appropriate security password. Each Customer
agrees to not (i) attempt to bypass any security mechanisms in place on any FNT
system hosting the Starter Repository, or (ii) use any FNT system or service to
attempt to bypass any security mechanisms in place on any other FNT system,
including, but not limited to, running any password cracking software, or
attempting to access a system that such Customer knows or reasonably should know
it is not authorized to access in the manner or to the extent attempted.
(d) Systems Changes. It is anticipated that FNT may, during the term of
this Agreement, but without obligation to do so, make certain systems
enhancements in the methods of input, storage or retrieval or make other changes
to the Starter Repository or its databases. It is agreed by each Customer that
FNT will have the right to make enhancements, changes or additions which require
the Customer's use of new methods for access or changes to the Access Program.
FNT agrees to provide advance written notice of any such enhancements, changes
or additions to Customer with as much lead time as possible, but in no event
less than sixty (60) days. FNT will make available any such enhancements,
changes or additions to Customer without additional cost.
3. FEES AND PAYMENT
(a) Fees. FIS will pay FNT a fee in the amounts set forth on Exhibit B for
each Successful Retrieval in connection with a Starter Retrieval and L&V
Retrieval by the Customers (the "Starter Retrieval Fee" and the "L&V Retrieval
Fee", respectively, and collectively, the "Access Fees"). The Access Fees do not
include taxes. FIS will pay, or reimburse, FNT for payment of, any applicable
sales, use, personal property or similar taxes and any government charges based
on transactions hereunder, exclusive of corporate income or franchise taxes
based on FNT's net income. FNT may increase the Access Fees for each Starter
Retrieval and L&V Retrieval annually, effective on the anniversary date of this
Agreement, by an amount equal to the percentage amount indicated by the annual
change in the Consumer Price Index for urban wage earners and clerical workers
for the national average as compiled by the U.S. Department of Labor, Bureau of
Labor Statistics ("Index") for the twelve (12) month period most
3
immediately preceding the adjustment date for which such data has been compiled
and (subject to compliance with the amendment provisions set forth in Section
12(g), if applicable) Exhibit B shall be deemed to have been amended as a result
of each such increase.
(b) Payment. FIS shall provide to FNT, (1) on the fifteenth (15th) day of
each month during the term of this Agreement, an accurate count of the number of
Starter Retrievals and L&V Retrievals made by each Customer during the previous
month and (2) within thirty (30) days of providing such count, payment in full
for such Starter Retrievals and L&V Retrievals contained in the Customer count
based on the Access Fees. FIS agrees that it shall be responsible for payment to
FNT for the number of Starter Retrievals and L&V Retrievals made by each
Customer. FNT shall not be responsible for notifying any Customer about unusual
patterns in the frequency or duration of such access. FNT shall have the right
to receive from each Customer more detailed information regarding the number of
Starter Retrievals and L&V Retrievals in the event that FNT has reason to
believe that the information or number of Starter Retrievals and L&V Retrievals
for a particular period is inaccurate. FIS will be in breach of this Agreement
whenever FIS fails to pay in full any undisputed sum on behalf of any Customer
due to FNT for a period of thirty (30) days after FNT provides written notice of
nonpayment to FIS. To cure that breach, the sum then due, plus a late payment
fee equal to ten percent (10%) of the sum then due (or the maximum rate or
amount allowed by applicable law if less), must be paid by FIS to FNT.
(c) Audit. FNT shall have the right to audit the records of each Customer,
at the expense of FNT, to verify the correctness of the information provided on
behalf of each Customer regarding the number of Starter Retrievals and L&V
Retrievals and the sums being paid to FNT on behalf of each Customer for such
Starter Retrievals and L&V Retrievals. These audits shall be conducted during
normal business hours so as not to unreasonably interfere with the normal
business operations of such Customer. If the audit discloses that such FIS
under-reported fees to FNT, FIS shall pay promptly such under-reported amount,
together with interest at the rate of ten percent (10%) (or the maximum rate or
amount allowed by applicable law if less). In addition, if such under-reported
amount is in excess of five percent (5%) of the reported amount for the period
covered by the audit, then FIS shall promptly reimburse FNT for its reasonable
audit expenses.
4. TERM AND TERMINATION
(a) Term. Unless sooner terminated in accordance with the provisions
hereof, this Agreement shall continue in effect. The obligations under this
Agreement may be terminated by any of the following means:
(i) at any time by mutual agreement of the parties hereto, in
which event the obligations under this Agreement shall
terminate as of the date specified by the parties;
(ii) at any time by FNT, if FIS or the Customers breach any
material warranty or fails to perform any material obligation
hereunder, and such breach is not remedied within 30 days
after written notice thereof to FIS, in which event the
obligations under this Agreement shall terminate on the 20th
4
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;
(iii) at any time by FIS, if FNT breaches any material warranty or
fails to perform any material obligation owing hereunder, and
such breach is not remedied within 30 days after written
notice thereof to FNT, in which event the obligations 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;
(iv) 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
obligations under this Agreement shall terminate immediately;
(v) 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
obligations under this Agreement shall terminate immediately;
5
(vi) 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;
(vii) 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;
(viii) 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 LLC ownership
interests in, or all or substantially all of the assets or
business of, FIS, other than a transaction in which no person
or entity 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
(ix) upon 6 months prior written notice by FNT to FIS 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 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.
(b) Termination. Notwithstanding the above termination, in the event of
termination pursuant to subparagraphs (iii), (vi), (viii) or (ix), Customers
shall continue to receive access to the Starter Repository until such time as
they have found a reasonably acceptable alternative to obtain the same or
substantially similar benefit, but in no event longer than ninety (90) days
after the initial occurrence of an uncured breach, it being understood that
during such period (i) FIS shall continue to pay for such access in accordance
with Section 3, and (ii) FIS will attempt to obtain an alternative means as
quickly as reasonably possible.
5. OWNERSHIP AND USE
(a) Ownership. All data, information, images and other materials contained
in the Starter Repository and all programs, databases, specifications, manuals
and documentation relating thereto (including without limitation, compression,
storage, and retrieval techniques and formats and any enhancements made thereto)
are and shall remain the property of FNT or its providers. FIS agrees to treat
and agrees to cause each Customer to treat all proprietary information of FNT as
confidential and agrees to make it available solely to itself, the Customers,
their employees or authorized representatives who have a need to know. Each
Party further agrees not to make copies of the other Party's confidential
information or the confidential information of Customers, and not to obscure or
remove any notice of proprietary rights or confidentiality thereon. Upon
termination of this Agreement, each Party shall return all
6
confidential information of the other Party, and in the case of FNT, the
confidential information of Customers, provided to it pursuant hereto.
FNT warrants that it is the owner of, or has full right to provide access to
each Customer to, all of the records and data contained in the Starter
Repository and all programs, databases, specifications, manuals and
documentation relating thereto (including without limitation, compression,
storage, and retrieval techniques and formats and any enhancements made thereto)
on the terms herein.
(b) Customer Use. Records and data in the Starter Repository made
available to any Customer under this Agreement are to be used by such Customer
solely in accordance with the terms hereof.
(c) Use of Information. Except for PI, each Customer shall use records and
data in the Starter Repository only for the purpose of issuing title insurance
and other products in its ordinary course of business. Each Customer (including
PI) shall make no further distribution, by sale, lease or otherwise, of any
access to records and data in the Starter Repository, nor enable any third party
to access or to make use of any such records or data in the Starter Repository
provided to, or accessible by, Customer under this Agreement except in
accordance with Customer's ordinary course of business. For the avoidance of
doubt, PI, from time to time and as part of its ordinary course of business (a)
distributes, sells, and leases individual Starters in connection with individual
real estate search transactions, but does not and will not distribute, sell or
lease Starters in bulk to third parties, and (b) provides access to and makes
use of the records and data in the Starter Repository for third parties as part
of its Titlepoint service framework. FNT shall make no distribution, by sale,
lease or otherwise, of Customer confidential information, if any, nor enable any
third party to access or to make use of any such Customer confidential
information provided to, or accessible by, FNT under this Agreement.
(d) Nonexclusive Use. The Parties recognize that FNT shall continue to use
the Starters and L&Vs in the usual and ordinary course of business and may
furnish access to Starters and L&Vs, including the same Starters and L&Vs, to
other customers.
(e) Advertisement of Use or Ownership. During the term of this Agreement,
none of the Customers shall publicize that such Customer owns, possesses or
controls any Starters or L&Vs or has any interest therein except such rights as
are specifically granted to Customer by this Agreement.
(f) Due Care. Each Customer agrees to exercise due care in accessing the
Starter Repository hereunder so as to prevent the alteration or destruction of
records or data therein. Each Customer agrees that it shall be liable to FNT
(or, if applicable, its providers) for loss or damage related to such alteration
or destruction arising out of (i) a failure to exercise due care or (ii) an
intentional, dishonest or fraudulent act of an employee of Customer.
(g) Remedy. In the event that a Customer makes any unauthorized copy or
copies of records or data in the Starter Repository, or FNT ceases to provide
access to the Starter Repository or the records and data in the Starter
Repository in accordance with this Agreement, the Parties acknowledge and agree
that: (A) remedies at law will not adequately compensate
7
FNT or FIS, as the case may be; (B) FNT or FIS, as the case may be, may suffer
irreparable harm; and (C) FNT or FIS, as the case may be, shall be entitled, not
only to its damages, but also to seek injunctive relief, without the necessity
of posting bond.
6. WARRANTY EXCLUSION; DISCLAIMERS; LIMITATION OF LIABILITY
THE INPUT AND RETRIEVAL OF THE INFORMATION CONTAINED IN ANY FNT COMPUTER SYSTEM
IS SUBJECT TO THE RISKS OF TEMPORARY INTERRUPTION BY REASON OF EQUIPMENT OR
COMMUNICATIONS FAILURE ARISING OUT OF NUMEROUS CAUSES NOT WHOLLY WITHIN THE
CONTROL OF FNT; FNT IS NOT A GUARANTOR OF AND DOES NOT WARRANT UNINTERRUPTED
ACCESS TO THE STARTERS, THE L&VS, THE STARTER REPOSITORY, THEIR CONTINUITY, OR
SUITABILITY FOR ANY PARTICULAR PURPOSE, FREEDOM FROM ERROR OR CONVEYANCE OF
MALICIOUS COMPUTER CODE.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, FIS AGREES AND
WILL CAUSE EACH CUSTOMER TO AGREE THAT FNT SHALL INCUR NO LIABILITY TO ANY
CUSTOMER IN THE EVENT OF ANY DAMAGE OR DESTRUCTION TO ANY CUSTOMER COMPUTER
SYSTEM OR THE COMMUNICATIONS NETWORK THROUGH WHICH SUCH CUSTOMER ACCESSES SUCH
COMPUTER SYSTEM, EXCEPT ARISING OUT OF ANY FNT (i) GROSS NEGLIGENCE, (ii)
WILLFUL MISCONDUCT, (iii) IMPROPER USE OR DISCLOSURE OF CONFIDENTIAL
INFORMATION, IF ANY, (iv) VIOLATIONS OF LAW, OR (v) INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS OF A PERSON OR ENTITY WHO IS NOT A PARTY HERETO OR THE
SUBSIDIARY OF A PARTY HERETO. FNT SHALL NOT BE REQUIRED TO RECONSTITUTE, RESTORE
OR RECONSTRUCT ANY COMPUTER SYSTEM DAMAGED BY REASON OF ITS USE IN CONJUNCTION
WITH THE ACCESS PROVIDED HEREUNDER, EXCEPT ARISING OUT OF ANY FNT GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
ACCESS TO THE STARTER REPOSITORY AND ALL INFORMATION OBTAINED THROUGH IT,
WHETHER GENERATED BY FNT OR A PROVIDER, ARE LICENSED TO EACH CUSTOMER "AS IS".
FNT ASSUMES NO DUTY TO CONTINUE TO AUGMENT, CORRECT OR REMOVE ANY INACCURATE
INFORMATION OR NOTIFY CUSTOMERS OF ERRORS IN THE STARTER REPOSITORY. EACH
CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE TANGIBLE AND BUSINESS RESULTS OF
USE AND/OR RELIANCE UPON THE STARTER REPOSITORY AND ANY OTHER FNT PROPERTY.
NEITHER FNT NOR ITS PROVIDERS MAKE ANY IMPLIED WARRANTY OR REPRESENTATION,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY OR COMPLETENESS OF STARTERS, L&VS, STARTER REPOSITORY OR ANY OTHER FNT
PROPERTY MADE AVAILABLE TO ANY CUSTOMER IN TANGIBLE, ELECTRONIC OR OTHER FORM.
DISCLAIMER OF LIABILITIES. EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER
PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE
8
POSSIBILITY OF SUCH DAMAGES. NEITHER FNT NOR ANY PROVIDER ASSUMES LIABILITY, AND
SHALL NOT BE HELD LIABLE, TO ANY CUSTOMER OR TO ANY CUSTOMER'S CUSTOMERS OR
INSUREDS, OR TO ANY OTHER PERSON, WHO MAY RELY UPON ANY TITLE POLICY, BINDER,
GUARANTEE, ENDORSEMENT OR OTHER TITLE ASSURANCE, OR ANY STARTERS, ANY L&VS, OR
OTHER FNT PROPERTY PROVIDED OR ACCESSED HEREUNDER (INCLUDING BY REASON OF ERROR
OR OMISSION IN ANY INFORMATION OR RESULTING FROM THE USE OF ANY FNT PROPERTY).
7. INDEMNITY
FIS shall indemnify and cause each Customer to indemnify and hold FNT harmless
from claims, liability, loss, damage or expense of whatever nature, including
attorney's fees, arising as a result of any claims by third parties alleging or
founded in any manner on any errors or omissions in the records or data
contained in the Starter Repository. If such a claim is asserted, FNT shall
promptly notify FIS and the applicable Customer and, in the event of such
notification, FIS and such Customer may elect to defend FNT in any resulting
action or litigation. FIS and such applicable Customer may use for such purpose
counsel of such FIS' or Customer's choosing, approved in writing by FNT, at FIS'
or the Customer's expense. FIS and such Customer shall also have the right,
whether or not any action or litigation results, to compromise or settle any
monetary claim on behalf of FNT, but at the sole cost of FIS or such Customer.
FNT shall indemnify and hold each Customer harmless from claims, liability,
loss, damage or expense of whatever nature, including attorney's fees, arising
as a result of any claims by third parties alleging or founded in any manner on
the warranties contained in Section 5(a). If such a claim is asserted, such
Customer shall promptly notify FNT and, in the event of such notification, FNT
may elect to defend such Customer in any resulting action or litigation. FNT may
use for such purpose counsel of FNT's choosing, approved in writing by such
Customer, at FNT's expense. FNT shall also have the right, whether or not any
action or litigation results, to compromise or settle any monetary claim on
behalf of such Customer, but at the sole cost of FNT.
In the event that any provider of records or data to the Starter Repository or
other information to FNT fails to deliver (or delays the delivery of) such
material or information, or if any provider materially and adversely modifies
the conditions or cost to FNT of obtaining such material or information, then
FNT, at its option, may suspend or terminate its relationship with such provider
and any obligations to any Customer under this Agreement, upon no less than
thirty (30) days written notice. FNT may contract for an alternate source of the
same or similar records or data for the Starter Repository and, notwithstanding
any contrary provision of this Agreement, increase the applicable fees or
charges upon no less than thirty (30) days written notice, or a combination of
the foregoing. FNT will incur no liability to any Customer with respect to any
action or omission under this Section. In the event that a Customer receives a
notice pursuant to this Section substituting records or data or access thereto
or increasing the price thereof, then FIS may terminate such access if it
notifies FNT within thirty (30) days after receipt of notice from FNT regarding
such data or access thereto.
9
8. DISPUTE RESOLUTION
(a) Dispute Resolution. If any Party institutes an action against the
other for breach of this Agreement, either Party may, within sixty (60) days of
service of the complaint in such action upon it, institute arbitration and the
other Party shall cooperate to stay any other proceedings. Any such arbitration
shall be conducted in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association ("AAA"). The arbitration shall be conducted in
Jacksonville, Florida by a single arbitrator knowledgeable about title insurance
and contracts. If the Parties have not agreed to a mutually acceptable
arbitrator within thirty (30) days of the date of the notice to arbitrate, the
arbitrator shall be selected by the AAA from its regularly maintained list of
commercial arbitrators familiar with matters similar to the subject of this
Agreement. The arbitrator shall conduct a single hearing for the purpose of
receiving evidence and shall render a decision within thirty (30) days of the
conclusion of the hearing. The Parties shall be entitled to require production
of documents prior to the hearing in accordance with the procedures of the
Federal Rule of Civil Procedure, shall exchange a list of witnesses, and shall
be entitled to conduct up to five (5) depositions in accordance with the
procedures of the Federal Rules of Civil Procedure. The decision of the
arbitrator shall be binding and final. The arbitrator may award only
compensatory damages, and not exemplary or punitive damages. In the event a
Party asserts multiple claims or causes of action, some but not all of which are
subject to arbitration under law, any and all claims subject to arbitration
shall be submitted to arbitration in accordance with this provision.
(b) Attorneys' Fees and Costs. Each Party shall bear its own costs,
expenses and attorneys' fees and shall equally bear the costs of the arbitrator.
(c) Parties to the Dispute. FIS agrees that it alone shall, to the extent
it is legally and reasonably able to do so, institute an action for breach of
this Agreement against FNT on behalf of itself or on behalf of Customers. FIS
shall cause each Customer to agree that FIS shall be the sole entity to
institute an action for breach of this Agreement by FNT.
9. DISASTER OR OTHER INTERRUPTION OF SERVICE
FNT shall not be held liable for any delay or failure in performance of any part
of this Agreement from any cause beyond its reasonable control and without its
fault or negligence, including, but not limited to, acts of God, acts of civil
or military authority, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents, floods,
strikes, terrorism and power blackouts. Upon the occurrence of a condition
described in this Article that prevents FNT's performance, FNT shall give
written notice to FIS, and the Parties shall promptly confer, in good faith, to
agree upon equitable, reasonable action to minimize the impact, on both Parties,
of such conditions.
10. COMPETITION
This Agreement shall not operate to deny either Party or the Customers the right
and opportunity to compete with each other, or to compete on an equal basis on
the open market. Nothing contained in this Agreement is to be deemed to make any
Party the agent of the other or to constitute an association, partnership or
joint liability between the Parties. The Parties have no
10
intention or thought to agree between themselves, or even to confer together, as
to underwriting methods, as to fees or premiums to be charged by them to their
customers, or as to any other processes or practices of either Party except as
otherwise stated or prescribed by any Issuing Agency Agreement entered into
between the Parties or, if applicable, their affiliates.
11. COMPLIANCE BY CUSTOMERS
FIS has the authority to cause and shall cause each other Customer to comply
with the terms of this Agreement.
12. MISCELLANEOUS
(a) Interpretation. This Agreement is to be construed under the laws of
the State of Florida. If any one or more of the terms, provisions, promises,
covenants or conditions of this Agreement, or their application to any person,
corporation, other business entity, or circumstance is to any extent adjudged
invalid, unenforceable, void or voidable for any reason by a court of competent
jurisdiction, each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement and their application to other
persons, corporations, business entities, or circumstances shall not be affected
and shall be valid and enforceable to the fullest extent permitted by law. This
Agreement shall not be construed against the Party preparing it, but shall be
construed as if both Parties prepared this Agreement. The headings of each
section and paragraph are to assist in reference only and are not to be used in
the interpretation of this Agreement. Nothing contained in this Agreement is to
be deemed to constitute an association, partnership or joint liability between
the Parties.
(b) No Assignment or Transfer. This Agreement cannot be assigned, in whole
or in part, by either Party by operation of law or otherwise, without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. Any assignment in contravention of this Section shall be void.
(c) Benefit. This Agreement will be binding upon and inure to the benefit
of the Parties hereto and their respective successors and permitted assigns.
This Agreement is solely for the benefit of the Parties hereto and no third
party will have the right or claim to the benefits afforded either Party
hereunder.
(d) Compliance with Laws and Regulations. FIS agrees to use and agrees to
cause each Customer to use information received from FNT in compliance with all
applicable Federal, State and local laws and regulations, including without
limitation, Fair Credit Reporting Act (U.S.C.A. Title 00, Xxxxxxx 00, Xxxxxxxxxx
XXX), as amended from time to time.
(e) Survival. Following the expiration or termination of this Agreement,
whether by its terms, operation of law or otherwise, all terms, provisions or
conditions required for the interpretation of this Agreement or necessary for
the full observation and performance by each Party hereto of all rights and
obligations arising prior to the date of expiration or termination, shall
survive such expiration or termination.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes and
integrates all prior and
11
contemporaneous agreements, representations and understandings of the Parties,
oral and written, pertaining to the subject matter hereof. No waiver of any of
the provisions of this Agreement is to be considered a waiver of any other
provision, whether or not similar, nor is any waiver to constitute a continuing
waiver. No waiver shall be binding unless set forth in a writing executed by the
Party making the waiver. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
(g) Amendments. Except for (x) any deletion of a Customer from Exhibit A
because the Customer is no longer a direct or indirect subsidiary of FIS (which
deletion and the termination of rights under this Agreement as to that Customer
shall be automatic upon the change of ownership of such Customer), (y) any
annual increases in the fees described in Exhibit B, as expressly permitted
pursuant to Section 3(a), no supplement, modification, or amendment of this
Agreement or any Schedules or Exhibits hereto shall be binding unless executed
in writing by the Parties. Notwithstanding the foregoing, at any time prior to
the Sale of FIS or any IPO (as herein defined), this Agreement may not be
amended without the prior written consent of THL and TPG (as herein defined) if
such amendment would affect the term of this Agreement under Section 4 or FNT's
right to terminate this Agreement pursuant to Section 4, or the rights upon
default by FIS or Customer(s) pursuant to Section 4, or Sections 2, 5 or 7, or
Section 3 or Exhibit B (except for the annual increases expressly authorized by
Section 3), in each case in any manner materially adverse to consolidated
business activities of FIS and its Subsidiaries, on a consolidated basis (the
"FIS Group"), 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 the
exhibits and schedules 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, and provided, further, that in no event shall
the amendment provisions set forth in this Section 12(g) be amended or modified
without the consent of THL and TPG. THL and TPG are intended third party
beneficiaries of this Agreement solely with respect to this Section 12(g). For
purposes of this Agreement, (i) "THL" means Xxxxxx X. Xxx Equity Fund V, L.P.
and "TPG" means TPG Partners III, L.P.; and (ii) "Sale of FIS or any IPO" means
any of the following: (A) an acquisition by any Person (within the meaning of
Section 3(a)(9) of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") and used in Sections 13(d) and 14(d) thereof ("Person")) of
Beneficial Ownership (within the meaning of Rule 13d-3 under the Exchange Act
("Beneficial Ownership")) of 50% or more of either the then outstanding shares
of FIS common stock or the combined voting power of the then outstanding voting
securities of FIS entitled to vote generally in the election of directors;
excluding, however, the following: (I) any acquisition directly from FIS, other
than an acquisition by virtue of the exercise of a conversion privilege unless
the security being so converted was itself acquired directly from FIS or (II)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by FIS or a member of the FIS Group, or (B) an 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.
(h) Schedules. Each of the Schedules, Addenda and Exhibits attached to
this Agreement (initially or by way of amendment) is incorporated herein by
reference as if set forth in full.
12
(i) Notices. All written notices permitted or required to be given under
this Agreement may be personally delivered to the office of the other Party, or
shipped via a nationally recognized overnight courier service, or mailed to the
office of the other Party by Certified United States Mail, or sent by electronic
mail. Each notice shall be addressed to the address set forth under the Party's
signature. Any notice delivered hereunder will be effective on the date
delivered when delivered personally or by overnight courier, or on the third
business day after mailing if mailed by Certified United States Mail, or on the
date delivered when sent by electronic mail. Either Party may, by written notice
to the other via first class mail, change its address for notices.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
FIDELITY NATIONAL TITLE GROUP, INC.
By ________________________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
Address for Notices:
Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By ________________________________________
Xxxxxxx X. Xxxxxxxx
Senior Vice President
Address for Notices:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
13
