EXHIBIT 10.37
AGREEMENT FOR SALE OF PLANT INDEX
AND
FOR USE OF
COMPUTERIZED TITLE PLANT SERVICES
BETWEEN
CHICAGO TITLE INSURANCE COMPANY, A MISSOURI CORPORATION
HEREIN REFERRED TO AS PROVIDER
AND
LSI TITLE AGENCY, INC., AN ILLINOIS CORPORATION
HEREIN REFERRED TO AS USER
RECITALS
WHEREAS, Provider and User are corporations presently engaged, or intend
to be engaged, in the title or title insurance business in ▇▇▇▇▇ County, State
of Washington;
AND WHEREAS, Provider is presently engaged in collecting, imaging,
formatting and maintaining the official records of said county into plant
indices and images for use in said county;
AND WHEREAS, Provider is presently engaged in producing, maintaining and
updating, on a daily basis, a computerized title plant index, (the "Plant Index
"), composed of all documents affecting or purporting to affect title to real
property and other material which are recorded or filed in the offices of the
county recorder and the office of the county clerk of said ▇▇▇▇▇ County, since
7/1/67 in such a manner as to constitute constructive notice to their contents.
AND WHEREAS, Provider is presently engaged in maintaining a title plant
index in a non-computerized format (the "Back Plant Index) for all documents
affecting or purporting to affect title to real property and other material
which are recorded or filed in the offices of the county recorder and the office
of the county clerk of said ▇▇▇▇▇ County, prior to 7/1/67 in such a manner as to
constitute constructive notice to their contents.
AND WHEREAS, Provider is presently engaged in producing, maintaining and
updating, on a daily basis, a computerized collection of electronic document
images (the "Image Library "), composed of all documents affecting or purporting
to affect title to real property and other material which are recorded or filed
in the offices of the county recorder and the office of the county clerk of said
▇▇▇▇▇ County, since 1/1/80.
AND WHEREAS, Provider is presently engaged in maintaining a collection of
non-electronic document copies (the "Back Plant Documents"), composed of all
documents affecting or purporting to affect title to real property and other
material
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which are recorded or filed in the offices of the county recorder and the office
of the county clerk of said ▇▇▇▇▇ County, prior to 1/1/80. (The Plant Index,
Back Plant Index, Image Library and Back Plant Documents are collectively
referred to herein as the "Title Plant" and is more particularly described on
Exhibit "A" attached hereto.)
AND WHEREAS, it is not the intent of the parties to this Agreement to
create any restraint in trade or that any provision of this Agreement be
violation of any federal, state or municipal law or regulation. The parties are,
and shall remain, competitors in the business of title insurance and their
maintenance of separate title plant operations;
AND WHEREAS, the parties hereto agree that this agreement does not create
any partnership, joint venture, or other association. To the extent that
Provider agrees to furnish anything hereunder, Provider shall remain an
independent contractor contracting with User without any control by User over
the manner in which Provider shall perform its obligations except to the extent
provided for in this Agreement. The performance of all obligations of Provider
hereunder shall be made by employees of Provider and their performance of said
obligation shall not make them employees of any other party hereto.
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties agree as follows:
PLANT INDEX (TITLE SCAN SYSTEM)
1. MAINTENANCE OF PLANT INDEX
Provider agrees to maintain the Plant Index and to provide User each day's
Plant Index in a merged electronically viewable and retrievable form, beginning
with the index produced on the 7/1/67 date in accordance with the recitals,
terms, provisions, and conditions of this Agreement and continuing until
concluded in accordance with the provisions hereof. Such Plant Index is
presently indexed by Provider in the following ways, which system of indexing
can be modified by Provider:
A) Property - indexed by parcels according to the following types:
(i) Recorded plats;
(ii) Acreage (Section, Township, Range according to the county
assessor's parcel map and CTI ARBing system);
(iii) Donation land claims (according to Provider's arbitrary map
parceling system);
(iv) Unrecorded plats (according to Provider's arbitrary map
parceling system);
(v) Condominium plats; and
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(vi) Short plats.
B) General Index:
(I) Individual names - indexed in alphabetical order or by Soundex
system; and
(ii) Corporation names - indexed in alphabetical order or by
Soundex system.
c) A&R or "extension" records: Indexed to the AFN number of the document
affected
The indexing of documents describing real property thereon will be
accomplished through the use of recorded plats of the county assessors parcel
maps as maintained by Provider's arbitrary map system and Provider's method for
indexing. Provider and User hereby agree that Provider will arrange for copies
of said arbitrary system maps, to be produced at Users expense. Subsequent
modifications shall be copied and delivered to user in an ongoing and timely
manner. Additional copies will, at User's request and expense, be prepared and
delivered to User. User agrees it has been afforded ample opportunity to inspect
Provider's plant indexing system and that it is satisfied as to the overall
operational quality of said system. All accumulated daily indices shall be
reformatted, sorted and merged together so as to become one larger index, then
stored on magnetic disks from which the indices may be electronically accessed
by Provided and User from computer workstation. The computer site shall be on
the premises of Provider at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ or
at such other reasonable location as Provider may deem necessary in the future.
2. Obligation to Index Documents
The indexing of documents describing real property thereon will be
accomplished in part through the use of the county assessor's parcel maps. Each
of the parties to this agreement will, for the benefit of each of the other
parties hereto, place in the body of each document to be recorded a notation of
the assigned assessor's parcel number for each parcel of real property described
therein. There shall be no liability for failure to do so or for any
incorrectness in the numbers so shown.
3. Access and Installation to Provider's Network
User will arrange, at the sole expense of User, the means via wide area
network data-lines and related data communication devices, and such other
hardware and software which may include personal computers and related software
used as application or communication servers as may be necessary at both the
host and remote sites, to access such indices for title search or other related
purposes by use of a personal computer workstation located on User's premises.
User will, at User's sole expense, arrange for delivery and installation
on the premises of User the appropriate personal computer workstation(s),
printers and
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software, together with the necessary communication lines and communication
related equipment all of which shall be compatible with Provider's computer
system.
It is specifically understood by User that the acquisition, installation
and maintenance of any equipment and software, including but not limited to
communication servers or similar devices necessary for communication between the
host site network hub and the User site, shall be a User obligation and
responsibility.
Provider shall make available to User a network connection at the host
site. User is solely responsible for costs and expense to keep the personal
computer workstations, printers and communication equipment above described in
good repair, condition and working order.
User is also solely responsible for all costs of installation and
maintenance as well as for the resolution of all problems in communication
circuits and related equipment dedicated to or used by User. Provider will,
however, provide reasonable assistance to User in the diagnostics of problems in
communications or equipment. If, in the act of assisting User in the diagnostics
or solution of any problem in any User's equipment, Provider, in good faith,
places a service call which results in a billable charge, said charge is User's
sole responsibility.
4. Fallout and Other Title Company Reports
Provider will provide a report (fallout) on a daily basis available to
User through the wide area network, itemizing each recorded or filed document
affecting all title orders opened and entered by User at its network location,
which documents are recorded or filed subsequent to the date of opening of such
order.
5. Documentation and Training
Provider, through the software vendor Title Scan System, has or will
furnish the necessary documentation to enable User to understand the nature and
of content of the title plant index and an explanation of reports delivered.
Provider or software vendor Title Scan System will train User's key
personnel in the use of personal computer workstation(s) methods and procedures
to be followed for the proper retrieval of title searches and other material
from the Plant Index. A User's Manual detailing specifications of the index and
the step-by-step procedures to be followed from a PC workstation, will be
supplied for the training of User's key personnel if available from the vendor
Title Scan System.
The training shall be for a sufficient period of time in Provider's sole
judgment to enable the initial operators of said devices to become proficient in
their use. The initial training period shall not exceed 24 business hours. Any
further training required for the replacement of additional operators will be
charged to User on the basis of time and material.
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6. Software License
User will arrange for a license Agreement to be executed with Title Scan
System of their Plant Index software for the number of workstations needed in
their operation at the sole expense of User.
User will pay Provider the license cost for the increased number of
workstation licenses needed to support User with the Novel Operation System and
NT Operation System. User will reimburse Provider in an amount equal to the cost
of any additional workstations licensed under the Title Scan License Agreement
between Provider and Title Scan System dated _________________.
7. Posting Users Open Orders and User's Starters
Each company using the system, (Provider and User) may input the
respective open orders to an order entry file, accessible only by the
originating user. Each company using the system may also input their starters as
required. This data will be posted to the property index. Each company may then
be able to search for their starter using a unique starter code. Each company
using the system, will not be able to access each others starters.
IMAGE LIBRARY
8. Maintenance of Image Library
Provider shall produce, maintain and update on a daily basis a
computerized Image Library composed of the following items effecting real
property, recorded by the auditors office of ▇▇▇▇▇ County, State of Washington,
since 1/1/80.
A. Daily recorded documents from the ▇▇▇▇▇ County Auditors office
relating to real estate.
B. Plat Maps and Plant related Recorded Documents.
C. CC + R's for Plats.
D. Short Plat Maps and Short Plat related Recorded Documents.
E. Surveys.
DATA COMMUNICATION, HARDWARE AND SOFTWARE.
9. Equipment. User shall be solely responsible for all costs related to
User's (a) installation, purchase and/or lease of data communication, PC network
and image enabled workstation equipment (collectively, "Equipment") used to
access the Imaged Library by User; and (b) maintenance of the Equipment used to
access the Imaged Library by User.
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10. Software License. User will arrange for a License Agreement to be
executed with Title Scan System of their imaging software for the number of
users needed in the operation at the sole expense of User.
11. Down Time. The parties recognize that the development and maintenance
of the Imaged Library is subject to of temporary interruptions ("Down Time") due
to equipment failure arising from numerous possible causes, and that Provider is
not the guarantor of the instant and continual availability of the recorded
document images in the Imaged Library. Provider will bear no liability to User
due to or during said Down Time. Provider will use due diligence to maintain a
reasonable capacity to provide timely, workmanlike repair and maintenance
services whenever the Imaged Library becomes inoperable.
BACK PLANT INDEX
12. Maintenance of Back Plant index
Provider shall maintain the non-computerized Back Plant Index for access
by User.
BACK PLANT DOCUMENTS
13. Maintenance of Back Plant Documents
Provider shall maintain the non-computerized Back Plant Documents for
access by User.
CONSIDERATION
14. Monthly Charges
For the convenience of the parties hereto, Provider agrees to invoice User
on a monthly basis as follows:
a. The purchase price for each month's merged Plant Index shall be
$4,500.00 per month.
b. The purchase price for each months images to the Image Library shall
be $2,500.00 per month
c. The price for access and retrieval of documents from the Back Plant
Documents shall be $2.00 per document retrieved
d. The price for access and retrieval of documents from the Back Plant
Index shall be $2.00 per image document retrieved
Access to the database will be provided to User for training on or about January
1, 2005. Billing for access will begin February 1, 2005.
..Access to the Title Plant will be provided to User for training on or about
January 1, 2005. Billing for access to the database will begin February 1, 2005.
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15. Fee Adjustment
The fees set forth above are subject to change by Provider annually of
each year with the January billing. The increase will be no more than 4% to
cover annual increase in ordinary operation expenses.
16. Billing for Payment of Monthly Charge
Provider shall submit an invoice to User by the 5th workday of each month
for the amount due for the previous calendar month. User agrees that it will pay
the monthly charges each month within 15 days of receipt of such billing.
A state of default will exist if payment on any sum payable to Provider is
not made within 45 days after the due date. In the event of default, Provider
may terminate all rights of the defaulting User without notice.
Thereafter, and only in the event that all sums owed or owing by the defaulting
User under this Agreement or any addendums hereof, have been paid within thirty
days from the date of termination of such rights, plus a late payment charge
equal to 10% of all sums owing. User will be entitled to restart service as
provided for in the Agreement at the then current charges. In the event of any
billing dispute, Chicago Title has no obligation to consider any adjustment, nor
will any be made unless such matter is presented for adjustment within 90 days
of statement date.
OTHER PROVISIONS
17. Technical Changes
Certain engineering changes or temporary alterations to the hardware,
application software or operation software of Provider may be necessitated in
the future, including, but not limited to, change in the server, computer
components, disk drive and model upgrade.
18. Should the acquisition of additional or replacement equipment become
necessary, Provider shall determine the necessity of the equipment and shall
purchase same.
Owner shall have the right to make any engineering or technical changes to
its hardware application software or operation software, including but not
limited to the purchase of any type of equipment (hardware) or software, without
the approval of User. At User's sole expense, User will arrange for delivery and
installation of hardware and/or software that are compatible with Provider's
up-graded computer system if needed.
19. SCHEDULED FOR SERVICES
Under normal conditions, the database will be available to User for access
between the hours of 6.00 a.m. through 6.00 p.m. on any regular business day,
and for such other hours that the system is not down for the nightly processing
and back up or for periodic maintenance or special events that require all Users
to be off the system.
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Whenever possible, Provider agrees that system maintenance will not be scheduled
before 5.00 p.m. on a regular business day. Scheduled maintenance resulting in
down time will be accounted in advance. There shall be no additional charges for
the privilege of accessing the system on non-regular business days, nor will any
advance notice by User by necessary.
20. OWNERSHIP
Except as expressly provided for, User hereby agrees and acknowledge that
it has not received, nor will it receive, any rights whatsoever, either express
or implied, in or to the hardware, software, or any other equipment or system
purchased exclusively by Chicago Title, and used to maintain and operate said
Plant Index system, all of which shall at all times remain the exclusive
property and under exclusive control of Provider, except those certain network
and related devices and Users communication equipment hereinabove referred to
which is owned or controlled by User, and except for any software licenses
purchases by User from Title Scan System wherein User is currently licensed by
Title Scan System to use Title Scan System software to search the property,
general and A&R indexes being created by Provider.
Provider shall not be prohibited by this Agreement from entering into
similar or other Agreements with other Users or entities in this or other
counties.
User hereby agrees and acknowledges that, except for the Equipment, it has
not received, and will not receive, any rights whatsoever, either express or
implied, in and to any hardware or software used by Provider to develop and
maintain the Imaged Library, all of which shall at all times remain the
exclusive property and under the exclusive control of Provider.
21. TERM
Provided User is in compliance with all of the terms of this Agreement,
neither party may cancel this Agreement for a period of 60 full months from
User's on-line date.
This Agreement shall automatically be renewed for subsequent one (1) year
terms beginning on the first anniversary of the execution of this Agreement and
on the beginning on each subsequent anniversary thereafter, unless written
notice of intention to conclude this Agreement is delivered to the other party
not less than 120 days prior to the expiration of the initial 60 month term or
any one year extensions term.
22. Cancellation/Withdrawal
Upon cancellation, withdrawal or termination, User shall cease to be
a party to this Agreement and thereafter shall not be entitled to receive any
further information or service under this Agreement, and no further liability
for payment shall thereafter accrue against User, except for all amounts for
which User shall become previously obligated hereunder.
After the effective date of cancellation, withdrawal or termination
hereunder, the covenants and agreements made by the parties shall cease to be
operative, except
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that such cancellation, withdrawal or termination shall not extinguish any
obligation, covenant or cause of action which may have arisen in favor of any
prior to such cancellation, withdrawal or termination, and not satisfied or
discharged at the time of cancellation, withdrawal or termination.
Provided User is not, at the time of withdrawal or termination, in default
hereunder with respect to any of its obligations, Provider shall produce and
deliver to User within thirty days after the last sale under this Agreement is
concluded (except as otherwise provided), a Plant Index magnetic media,
organized in alphabetical sequence as to the general index, and in geographical
order as to the property index, of records entered from 1/1/05 to the date of
withdrawal or termination. Recognizing that each day's sold Plant Index must be
merged with the preceding days in order to be efficiently useable, both parties
agree that magnetic media referred to herein is not required to be produced
until all of the sales contemplated by this Agreement are concluded or until
such time as is mutually agreeable between the parties, and under no
circumstances shall demand sooner delivery than as provided. So that there is no
information gap while User is waiting for the creation and delivery of the
magnetic media, provider agrees to continue on line access at a per diem amount
of the monthly amount charged to User, until the film and tape is delivered, and
for a period thereafter not to exceed 30 days, in order that User integrate such
medium into its existing system, again, provided User has paid all sums due
Provider as of the date of cancellation, termination or withdrawal. Whenever
User shall be entitled to receive a copy of said index, Provider shall furnish
said index at User's expense.
Provided User is not, at the time of withdrawal or termination, in default
hereunder with respect to any of its obligations, Provider shall produce and
deliver to User within thirty days after the last sale under this Agreement is
concluded (except as otherwise provided), an Image Library magnetic media for
documents entered from 1/1/05 to the date of withdrawal or termination.
23. RESTRICTIONS
If and when User shall be entitled to a copy of the Plant Index and/or
Image Library magnetic media as such may be required to be provided under the
terms of this Agreement, it shall be exclusively the property of User and may be
used to produce copies subject to the restrictions contained above. For a period
of 10 years from the date User cancels, withdraws or terminates as a user under
the agreement in ▇▇▇▇▇ County, with regard to the indices developed hereunder,
or any portion thereof, or any photostatic copy, "Xerox" copy, electronic format
or any other type of reproduction of a copy of the indices (or any portion
thereof), User agrees that it will not allow the use of same in any manner
whatsoever by persons other than direct employees of User, or use same (or any
material provided by Provider pursuant to this Agreement), in other than its own
title business. User further agrees that it will not provide the use or the
benefits derived from the indices (or any portion thereof) to any other
underwritten title company or title insurer, or to any other person,
corporation, association, or entity during the stated periods of this Agreement,
provided however, none of the provisions of this paragraph shall prohibit User
from furnishing title information to the title insurance company whose policies
it regularly issues in the usual and customary course of business.
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The foregoing restrictions on sale or transfer shall not apply to any
transactions which result in the transfer of substantially all of the ▇▇▇▇▇
County business assets of User to another entity by sale, lease, merger,
reorganization or consolidation; and the foregoing paragraph shall not be
construed to prevent User from providing miscellaneous title information to real
estate licensees, attorneys or other users in the title insurance services in
order to facilitate the placing of orders for such services.
24. TERMINATION
The occurrence of any of the following shall immediately terminate all
rights of User under this Agreement:
(A) The appointment of a receiver to take possession of all or
substantially all of the assets of User;
(B) A general assignment by User to benefit of creditors;
(iii) Writs of attachments or execution or distraint proceedings on the
interest hereunder of User, if said writ is not discharged prior to
public sale under the writ;
(C) Any action taken or suffered by User under any insolvency or
bankruptcy act; or
(D) Default in any payment as required herein.
25. EXERCISE OF DUE DILIGENCE
Provider shall exercise reasonable competence in performing the required
services herein.
Performance of any of the provisions of the Agreement shall be excused for
a reasonable period if it is impossible or unreasonably difficult for the party
who is obligated to perform hereunder because of damage or destruction to any
equipment or data necessary to performance by an act or God, acts of war, riot,
unlawful assembly, fire, explosions, power outage or any other such catastrophic
occurrence.
The parties hereto recognize that the input and retrieval of the
information contained in Provider's computer is subject to the hazard of
temporary interruptions, commonly known as down time, by reason of equipment
failure or its inability to operate arising from numerous possible causes, and
that Provider is not the guarantor of the instant and continual availability of
the information contained in the computer Title Plant and performance by
Provider of any of the provisions of this Agreement shall be excused because of
and during said Down Time. Provider does, however, agree that it will maintain a
reasonable capability to provide timely, workmanlike repair and maintenance
service whenever such Title Plant becomes inoperable. Any data incapable of
being entered during such down time will be entered as quickly as possible when
system operation is restored. There shall be no abatement of the purchase price
during Down Time. Promptly upon the discovery by User of any error in any
information, in whatever form, supplied pursuant to this Agreement, User shall
communicate the fact thereof in writing to Provider. Upon receipt of this
information, Provider shall incorporate the correction as soon as possible in
the Title Plant for ▇▇▇▇▇ County.
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26. LIABILITY LOSS
Provider shall have no liability to User for any error in any of the
information furnished, provided that such information is the same as that which
is used by Provider in its business of searching, examining and insuring title
in ▇▇▇▇▇ County, Washington. Provider shall have no liability or responsibility
to any customer of User or to any person to whom User may furnish such title
information, report, binder, guarantee or policy upon which such claim or
assertion is based. User shall indemnify and hold Provider harmless from and
against such claim or assertion, including all costs, expenses, attorney's fees
and actual loss or losses incurred or sustained by reason of such claim or
assertion. When such claim or assertion is made to Provider, Provider shall
promptly give notice to User and User shall have the right, if it so elects, to
provide for the defense of Provider in any action of litigation based thereupon
by counsel of said User's own choosing and at User's own cost and to pursue such
litigation of final determination. User shall also have the right, whether or
not any action or litigation shall have resulted, to compromise or settle any
such claim on behalf of said Provider but at the sole cost of User. The parties
hereto agree that they do not intend by this Agreement to benefit any third
party or to create any third party beneficiary rights under this Agreement. Any
benefit accruing to any third party is incidental to the rights and obligations
created hereunder.
Provider shall not be liable to User and User shall defend and hold
Provider harmless from any loss or damage, nor shall there be any abatement of
the charges set forth herein arising from (a) accuracy or inaccuracy,
completeness, correctness or incorrectness, legibility or illegibility, or other
deficiency of any kind of any recorded document image; (b) Provider's failure to
deliver, or delay of any recorded document image requested by User; (c) any lack
of completeness or other inadequacy of the Imaged Library; (d) any changes to
any original recorded document occurring as a result of conversion of said
original recorded document from microfilm to electronic image format; (e) the
use of any equipment or other software or hardware used in the operation or
recorded document images in the Imaged Library; (f) any interruption or loss of
service, information, or imaged document; or (g) any other act or omission of
Provider related to use of the recorded document image in the Imaged Library.
The parties also agree that Provider's development and maintenance of the
Title Plant and the delivery of recorded document images to User, shall in no
way create a policy of title insurance between the parties.
27. NOTICES
All notices required and permitted to be given in connection with this
Agreement shall be in writing and shall be deemed to have been duly delivered
and given if delivered personally, or mailed by registered or certified mail,
postage prepaid, as follows:
IF TO PROVIDER Chicago Title Insurance Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn. County Manager
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IF TO USER LSI Title Agency, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Any change of address must be given by certified mail. The effective date of
giving or delivery of any notice so given shall be (3) three days after personal
delivery, or (5) five days after the date of deposit in the mail.
28. COSTS OF DISPUTE RESOLUTION
In any action brought by any of the parties hereto against any other party
based in whole or in part of this Agreement, the prevailing party shall be
entitled to recover from the other party costs of suit and reasonable attorney's
fees which shall be fixed by the Court.
29. TAXES
Any sales or use tax which may be now or hereinafter imposed or assessed
on any provision of, or service rendered under the Agreement shall be paid or
payable by User.
30. MISCELLANEOUS
The covenants and agreements contained herein shall be binding on the
parties hereto and upon their respective heirs, executors, administrators,
successors and assigns.
The parties to this Agreement agree to execute all documents necessary to
implement any aspect of this Agreement and to do all consistent with the
performance of this Agreement.
The Agreement may be signed in counterparts and shall be binding upon and
insure to the benefit of each of the parties hereto.
31. WARRANTIES
PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE ACCURACY OF THE INFORMATION OR
ITS FITNESS FOR ANY PARTICULAR PURPOSE. PROVIDER SHALL HAVE NO LIABILITY TO USER
FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER NOR SHALL THERE
BY ANY ABATEMENT TO THE PURCHASE PRICE, ARISING OUT OF OR IN CONNECTION WITH (1)
ANY DEFICIENCY OR INADEQUACY OF THE INFORMATION FOR ANY PURPOSE, WHETHER OR NOT
KNOWN OR DISCLOSED TO PROVIDER, (2) ANY DEFICIENCY OR DEFECT IN THE INFORMATION,
(3) THE USE OR PERFORMANCE OF THE EQUIPMENT, (4) ANY INTERRUPTION OR LOSS OF
INFORMATION OR SERVICE, AND/OR (5) ANY LOSS OR OTHER CONSEQUENTIAL LOSS OR
DAMAGE WHETHER OR NOT RESULTING FROM ANY OF THE FOREGOING. USER WILL DEFEND,
INDEMNIFY AND HOLD
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HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS AND LIABILITIES RISING OUT OF OR IN
CONNECTION WITH THE INFORMATION CONTAINED IN SAID PLANT INDEX, OR LACK THEREOF.
32. PARAGRAPH HEADINGS
Paragraph headings are for convenience only and do not affect the meaning
or substance of the paragraph to which they refer.
33. ENTIRE AGREEMENT
The provisions, terms and conditions of this Agreement shall prevail
notwithstanding any variance with the provisions, terms and conditions of any
order submitted by User in respect to such services.
User acknowledges that it has not been induced to enter into this
Agreement by any representations or statements, oral or written, not expressly
contained herein or expressly incorporated by reference.
User acknowledges that it has read this Agreement, including any addendum
attached hereto, understands it, and agrees to be bound by its terms, and
furthermore, agrees that it constitutes the entire Agreement between the parties
and, except to the extent that they may be expressly incorporated herein,
supersedes and replaces all proposals, negotiations, conversations, discussions
and all written and oral agreements heretofore had, made or existing by and
between the parties or their representatives related to the subject matter of
this Agreement.
34. Assignment.
This Agreement may not be assigned by User to any entity, except that this
Agreement may be assigned to (a) an underwriter of User or (b) a successor in
interest of User, whether by purchase, consolidation, merger or other form of
reorganization (i) if such successor in interest is in the business of issuing,
title insurance, and (ii) upon approval of Provider within forty-five (45) days
of such purchase, consolidation, merger or other form of reorganization, which
approval shall not be unreasonably withheld. If Provider receives timely written
notice of said assignment and does not notify User of its disapproval within
forty-five (45) days of said assignment, then said assignment shall be deemed
approved.
35. Proprietary Information.
Provider shall not divulge to third parties confidential, trade secret, or
other proprietary information which comes into Provider's possession or control
in connection with the delivery of recorded document images by Provider.
36. Authority.
User warrants that it has proper authority to enter into this Agreement.
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37. GOVERNING LAW; JURISDICTION AND VENUE
This Agreement shall be construed under the laws of the State of
Washington. The parties shall be subject to the jurisdiction of the Courts of
the State of Washington and venue shall lie in ▇▇▇▇▇ County, Washington.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly and
properly executed by their respective Officers having full authority to do so on
this 20th day of December, 2004.
CHICAGO TITLE INSURANCE COMPANY,
a Missouri Corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
LSI TITLE AGENCY, INC.,
an Illinois Corporation.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
14
FIRST ADDENDUM
TO
THE AGREEMENT FOR SALE OF PLANT INDEX
AND FOR USE OF COMPUTERIZED TITLE PLANT SERVICES
WHERAS, on or about December 20, 2004, the undersigned parties entered into that
certain Agreement for the Sale of Plant Index and for Use of Computerized Title
Plant Services (hereinafter, the "Agreement").
NOW THEREFOR IT IS MUTUALLY AGREED by the parties hereto that, in consideration
of the promises contained in the Agreement and effective from the inception of
the Agreement, the Agreement is intended to be interpreted in accordance with
the following:
The Agreement and all terms and conditions contained therein shall be
construed to constitute a lease of the Title Plant, as such term is
defined in the Agreement, including all of the elements of the Title Plant
described in detail in Exhibit A to the Agreement.
This First Addendum may be executed simultaneously in two counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Addendum to the
Agreement to be duly and properly executed by their respective officers having
full authority to do so on this December 22, 2004.
Chicago Title Insurance Company, a Missouri Corporation
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Its: Executive Vice President
LSI Title Agency, Inc., an Illinois Corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Its: Senior Vice President
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