Exhibit 10.23
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 FNIS
SoftPro, a division of FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., with its
principal office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("SoftPro") and FIDELITY NATIONAL FINANCIAL, INC., with its principal offices at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Client").
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 SoftPro, or other functions mutually agreed to
be "Assistance" by Client and SoftPro.
1.2 "BASE MODIFICATION" shall mean any Modification which SoftPro, in
its sole discretion, has incorporated into the base version of the
SoftPro Software which SoftPro makes generally available to its
customers.
1.3 "CLIENT SERVER SOFTWARE" shall mean those client-server based
applications set forth in Section 1.3 of Exhibit A hereto.
1.4 "COMPETITOR" shall mean a natural or legal person offering a product
that competes with SoftPro Software.
1.5 "CUSTOM MODIFICATION" shall mean any Modification to the SoftPro
Software other than a Base Modification.
1.6 "DAYS" shall mean calendar days, unless otherwise specified.
1.7 "DEFECT" shall mean any failure, malfunction, defect or
non-conformity in the SoftPro Software that prevents the SoftPro
Software from operating and performing in any material respect in
accordance with the Documentation.
1.8 "DOCUMENTATION" shall mean SoftPro's standard operating instructions
relating to the SoftPro Software, consisting of one copy of the
object code form of the SoftPro Software; a copy of manuals
consisting of instructions and procedures for systems and operations
personnel and end users of SoftPro Software, and related
documentation which SoftPro makes available to its customers in
general. SoftPro will deliver the Documentation to Client in paper
form, on CD ROM or electronically, at SoftPro's discretion and in
accordance with SoftPro's then-
current practices for such delivery (except that SoftPro Software
shall be delivered on machine readable media). Client acknowledges
that not all items of Documentation are available in all forms of
media. SoftPro shall have the right to change the medium upon which
the Documentation is delivered to Client without notice to Client.
Upon electronic delivery of Documentation, any obligation of SoftPro
to deliver multiple numbers of copies of such Documentation to
Client shall have no further force or effect.
1.9 "ESCALATION PROCEDURES" shall mean the procedures set forth in
Section 10.3 of this Agreement.
1.10 "INSTALLATION SITE" shall mean the location at which the SoftPro
Software is installed and which is owned or controlled by Client, or
a Client 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 Client, and which is located in the
United States. The initial Installation Site address is listed in
Section 2 of Exhibit A.
1.11 "MAINTENANCE" shall mean the services described in Exhibit B hereto.
1.12 "MAINTENANCE RELEASE" shall mean the current Release of the SoftPro
Software and the immediately prior Release (provided that such
Releases have been made available to Client), and shall also
include, at any given time, each Release delivered to Client within
the prior two years.
1.13 "MODIFICATION" shall mean any customization, enhancement,
modification or change made to the SoftPro Software authored by or
for SoftPro under this Agreement.
1.14 "MSA" shall mean the Master Services Agreement by and between
Fidelity Information Services, Inc. and Fidelity National Financial,
Inc. entered into as of _______.
1.15 "PC SOFTWARE" shall mean those personal computer-based applications
developed by SoftPro that are set forth in Section 1.2 of Exhibit A.
1.16 "PROPRIETARY INFORMATION" shall mean all information disclosed by or
for Client or SoftPro to the other during the negotiations hereof
and/or learned by reason of the relationship established hereunder
or pursuant hereto, including, without limitation, the SoftPro
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
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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 SoftPro receives from or at the direction of
Client and that concerns any of Client's "customers" and/or
"consumers" (as defined in the GLB Act).
1.17 "RELEASE" shall mean the Base Modifications, and other new versions,
corrections, revisions, updates, modifications and enhancements to
the SoftPro Software and related Documentation that SoftPro makes
commercially available, without additional charge, to licensees of
the SoftPro Software to which SoftPro is providing Maintenance. A
Release does not include any new or replacement products.
1.18 "SERVER" shall mean a logical server that may include one (1) or
more physical servers.
1.19 "SOFTPRO AFFILIATE" shall mean any majority-owned, direct or
indirect subsidiary of SoftPro, as from time to time constituted.
1.20 "SOFTPRO 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 Client. SoftPro Software includes all Base
Modifications, all Modifications authored by or for SoftPro, and all
Releases issued during the term of Maintenance under this Agreement.
1.21 "SOURCE CODE" of SoftPro Software shall mean a copy of the source
code (or comparable high level coding) for the SoftPro Software,
including any annotations therein, certified by SoftPro to Client,
upon each delivery to Client, as a complete and accurate copy of
source code corresponding to the SoftPro Software as last delivered
or otherwise made available by SoftPro (whether in pieces or in an
integrated whole).
1.22 "THIRD PARTY SOFTWARE" shall mean those third party applications
provided by SoftPro that are set forth in Section 1.4 of Exhibit A.
1.23 "USE LIMITATIONS" shall mean the use by Client (i) of the SoftPro
Software by no more than the number of Users specified herein and
(ii) of the Client Server Software simultaneously on no more than
the number of Workstations licensed herein.
1.24 "USER" shall mean an individual authorized to use the Client Server
Software.
1.25 "WORKSTATION" shall mean any personal computer or computer terminal
on which use of Client Server Software is authorized.
2. GRANT OF LICENSE.
2.1 GRANT. Subject to Client's full payment, as due, of fees listed in
Exhibit C, SoftPro hereby grants to Client, and Client accepts from
SoftPro, a world-wide
nonexclusive, perpetual, irrevocable right and object code license
(except as otherwise provided for in Section 3 below) to use the
SoftPro Software and Documentation at the Installation Site(s),
subject to the restrictions and obligations set forth herein.
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 Client's installation(s) of SoftPro Software,
SoftPro shall promptly deliver to Client a complete copy of Source
Code, which shall be subject to all of the license terms and
restrictions applicable to the SoftPro Software.
3.2 CONDITIONS. SoftPro's duty of delivery of Source Code as described
above shall be immediately due and enforceable in equity upon any of
these circumstances:
(a) SoftPro has given notice to Client under terms of Maintenance
that SoftPro shall cease, or SoftPro has ceased, (i) providing
Maintenance generally or (ii) supporting any part of SoftPro
Software, and in the event of notice of future termination,
such termination (whenever notice is given) shall be effective
within twelve months.
(b) SoftPro 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 SoftPro as bankrupt or insolvent or approving a
petition seeking reorganization of SoftPro or appointing a
receiver, trustee, or liquidator of SoftPro 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) SoftPro shall be in breach of any material covenant herein or
under Maintenance (or of any Development Services SOW under
the MSA) which, following notice of breach in reasonable
detail from Client, is not cured within thirty (30) days. To
the extent the breach relates to Maintenance on a specific
module or separable component of SoftPro Software, the duty of
Source Code delivery shall be limited to the Source Code for
such specific module or separable component.
(d) Client shall have requested development or integration
services with respect to SoftPro Software which SoftPro 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 SoftPro
Software, the duty of Source Code delivery shall be
limited to the Source Code for such specific module or
separable component.
(ii) In the event of delivery of Source Code by SoftPro under
this subsection (d), upon Client's completion of its
development or integration effort, equating generally to
the same scope of work that SoftPro was requested to
perform but did not perform, it will provide to SoftPro
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, SoftPro shall be deemed granted a
license to use that source code developed by Client or
its non-Competitor contractors, solely for maintenance
or further development of the SoftPro Software as
implemented for Client and for no other use or
beneficiary.
(iii) Six (6) months following the delivery by Client to
SoftPro of source code for Client's developments or
enhancements under Section 3.2(d)(ii), SoftPro may
request that Client certify, and Client will promptly
certify to SoftPro, that Client has destroyed all copies
of (x) Source Code delivered to it by SoftPro 3.2(d) and
(y) all copies of the source code for Client's
development or enhancement - except two hard copy prints
of source code for Client's development or enhancement
for proof of authorship.
(iv) Client'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 SOFTPRO SOFTWARE.
(a) Client may not use the SoftPro Software in a service bureau or
in a time share arrangement.
(b) Client may not sell, lease, assign, transfer, distribute or
sublicense the SoftPro Software or Documentation, to any party
that is not a (direct or indirect) subsidiary of Client except
as set forth in Schedule 4.1(b) hereto. Client may not sell,
lease, assign, transfer, distribute or sublicense the Source
Code to any person or entity at any time.
(c) Client shall use SoftPro Software subject to the Use
Limitations.
(d) Client will not make copies, or similar versions of the
SoftPro Software or any part thereof without the prior written
consent of SoftPro, except in the process of contemplated use,
for administrative, archival or disaster recovery backup, and
as expressly provided otherwise herein.
(e) Client may not provide copies of the SoftPro 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 Client's non-Competitor contractors or subcontractors who
have executed nondisclosure terms consistent with the
confidentiality terms herein.
(f) Client shall not allow any third party to use or have access
to the SoftPro Software for any purpose without SoftPro's
prior written consent except as permitted under Sections
4.1(b) and (d) above, and except as to Client's non-Competitor
contractors or subcontractors who have executed nondisclosure
terms consistent with the confidentiality terms herein,.
(g) Client agrees not to disclose, decompile, disassemble or
reverse engineer the SoftPro 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 SoftPro
Software and Client's agreement to maintain the
confidentiality thereof shall apply to the PC Software and its
Documentation.
(b) Client may not modify the PC Software (although SoftPro may do
so on Client's behalf.)
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 OWNERSHIP OF SOFTPRO SOFTWARE AND DOCUMENTATION. From the date the
SoftPro Software and Documentation is first disclosed to Client, and
at all times thereafter, as between the parties, SoftPro and its
licensors shall be the sole and exclusive owners of all right,
title, and interest in and to the SoftPro 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
SoftPro and the SoftPro Affiliates from developing or marketing on
their own or for any third party in the United States or any other
country, the SoftPro 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 Client, or
any notice to Client.
5.2 DEVELOPMENT SERVICES. Client may from time to time wish to augment
the SoftPro product with additional functionality or utility, or to
integrate it with Client systems from other sources, and for such
purposes may request the provision of development services from
SoftPro pursuant to a statement of work under the MSA (a "SOW").
5.3 CONFLICT WITH MSA. Title to any SoftPro work product developed under
the MSA shall be determined by the MSA notwithstanding any
conflicting terms herein.
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 ▇▇▇▇ the document with
that nondisclosure period. In the absence of a specific period, the
duty of confidentiality for (a) SoftPro Software (except pursuant to
Schedule 4.1(b),) 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 Client disclose SoftPro Proprietary Information to a
Competitor of SoftPro. 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.
Notwithstanding application of any of the foregoing exceptions, in
no event shall SoftPro 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 Client and SoftPro 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 Client and SoftPro 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, SoftPro shall offer
Maintenance for the SoftPro 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
Exhibit B of the MSA.
8. INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY.
8.1 INVOICING AND PAYMENT REQUIREMENTS. SoftPro 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, Client shall pay SoftPro the
invoiced amount in full on or prior to the thirty (30) Days after
Client's receipt of such invoice unless Client notifies SoftPro
within such period that it is in good faith disputing SoftPro's
invoice. Client shall make all payments to SoftPro by check, credit
card or wire transfer of immediately
available funds to an account or accounts designated by SoftPro.
Payment in full shall not preclude later dispute of charges or
adjustment of improper payments.
8.2 PAST DUE AMOUNTS. Any amount not received or disputed by Client 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 Client desires to
purchase Assistance from SoftPro or a SoftPro Affiliate, such
Assistance shall be provided pursuant to separate agreement.
Notwithstanding the foregoing, to the extent Assistance is available
under the MSA, its performance shall be governed by the terms of the
MSA.
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 SoftPro and Client 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
Client's failure to make any undisputed timely and complete payments
to SoftPro 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 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 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 Fidelity
National Information Solutions, Inc. and the President of Fidelity
National Financial, Inc. 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 Fidelity National
Information Solutions, Inc. and the President of Fidelity National
Financial, Inc. or their designated representative(s) shall promptly
communicate with his/her counter party, negotiate in good faith and
use reasonable efforts to resolve such dispute or claim. The
location, format, frequency, duration and conclusion of these
elevated discussions shall be left to the discretion of the
representatives involved. Upon agreement, such representatives may
utilize other alternative dispute resolution procedures to assist in
the negotiations. If the parties have not resolved the dispute
within ten (10) days after receipt of the notice elevating the
dispute to this level, either may once again escalate the dispute to
binding arbitration.
(c) All discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as Proprietary
Information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in any
subsequent proceedings between the parties. Documents identified in
or provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in such subsequent
proceeding.
10.3 ARBITRATION PROCEDURES. If a claim, controversy or dispute between
the parties with respect to the terms and conditions of this
Agreement, or any subject matter governed by this Agreement (and not
otherwise excepted), has not been timely resolved pursuant to the
foregoing escalation process, upon notice either party may initiate
binding arbitration of the issue in accordance with the following
procedures.
(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 SoftPro initiates an action for
Client's failure to make timely and complete payment of undisputed
amounts claimed due to SoftPro, SoftPro will continue to provide
Maintenance under the Maintenance services agreement (and
development services under an MSA SOW), and unless Client is unable
to lawfully use the SoftPro Software and Modifications thereto,
Client will continue to make payments of undisputed amounts to
SoftPro, 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-POCKET DAMAGES,
ACTUALLY INCURRED, WHICH UNDER NO CIRCUMSTANCES SHALL EXCEED, IN THE
AGGREGATE, THE AMOUNT PAID BY CLIENT TO SOFTPRO 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 CLIENT SOFTWARE. SoftPro has no obligation or liability, either
express or implied, with respect to the compatibility of SoftPro
Software with any other software unless provided or specified by
SoftPro including, but not limited to, Client software and/or
Client-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 SoftPro Affiliates and Client 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 SOFTPRO SOFTWARE. SoftPro agrees to defend at its
own expense, any claim or action brought by any third party against
Client 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 SoftPro Software (except to the extent such
infringement claim is caused by Client-specified Custom
Modifications to the SoftPro Software which could not have been made
in a non-infringing manner) or caused by the combination of SoftPro
Software with software or hardware not provided, specified or
approved by SoftPro, or based upon the Third Party Software
("Indemnified SoftPro Software"). Client, at its sole discretion and
cost, may participate in the defense and all negotiations for its
settlement or compromise. SoftPro further agrees to indemnify and
hold Client, 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 Client. SoftPro shall conduct and control the
defense of any such claim or action and negotiations for its
settlement or compromise, by the payment of money. SoftPro shall
give Client, and Client shall give SoftPro, as appropriate, prompt
written notice of any written threat, warning or notice of any such
claim or action against SoftPro or Client, as appropriate, or any
other user or any supplier of components of the Indemnified SoftPro
Software, which could have an adverse impact on Client's use of
same, provided SoftPro or Client, as appropriate, knows of such
claim or action. If in any such suit so defended, all or any part of
the Indemnified SoftPro Software (or any component thereof) is held
to constitute an infringement or violation of any other party's
intellectual property rights and is enjoined, SoftPro shall at its
sole option take one or more of the following actions at no
additional cost to Client: (i) procure the right to continue the use
of the same without material interruption for Client; (ii) replace
the same with non-infringing software; (iii) modify said Indemnified
SoftPro Software so as to be non-infringing; or (iv) take back the
infringing Indemnified SoftPro Software and credit Client with an
amount equal to its purchase price. The foregoing represents the
sole and exclusive remedy of Client 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 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. SoftPro 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. SoftPro'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)
Client fails to timely submit material data or materials in the
prescribed form or in accordance with the requirements of this
Agreement, (ii) Client fails to perform on a timely basis, the
material functions or other responsibilities of Client described in
this Agreement, (iii) Client or any governmental agency authorized
to regulate or supervise Client makes any special request, which is
affirmed by Client and/or compulsory on SoftPro, which affects
SoftPro's normal performance schedule, or (iv) Client has modified
the SoftPro Software in a manner affecting SoftPro's burden. In
addition, if any of the above events occur, and such event results
in an increased cost to SoftPro, SoftPro shall estimate such
increased costs in writing in advance and, upon Client's approval,
Client shall be required to pay any and all such reasonable,
increased costs to SoftPro upon documented expenditure, up to 110%
of the estimate.
14. NOTICES.
14.1 NOTICES. Except as otherwise provided under this Agreement or in the
Exhibits, all notices, demands or requests or other communications
required or permitted to be given or delivered under this Agreement
shall be in writing and shall be deemed to have been duly given when
received by the designated recipient. Written notice may be
delivered in person or sent via reputable air courier service and
addressed as set forth below:
If to Client: Fidelity National Financial, Inc.
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
with a copy to: Fidelity National Financial, Inc.
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Director for IT
If to SoftPro: Fidelity National Information Solutions, Inc.
FNIS SoftPro Division
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President
with a copy to: Fidelity Information Services, Inc.
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 SoftPro is providing Maintenance to
Client for the SoftPro Software, SoftPro warrants and represents
that the SoftPro Software and the Custom Modifications, as delivered
to Client 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. SoftPro 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
SoftPro 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 SoftPro Software infringes the
rights of any third party in any of the United States, and (v) each
item of SoftPro Software provided by or for SoftPro to Client 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, Client may not assign
this Agreement to a Competitor.
16.2 SEVERABILITY. Provided Client retains quiet enjoyment of the SoftPro
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.
16.4 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 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 SoftPro Software
or related services provided under this Agreement. If a sales, use,
services or a similar tax is assessed on the SoftPro Software or
related services provided to Client under this Agreement, Client
will
pay directly, reimburse or indemnify SoftPro for such taxes as well
as any applicable interest and penalties. Client shall pay such
taxes in addition to the sums otherwise due under this Agreement.
SoftPro 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 SoftPro shall be
SoftPro'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 Softpro 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date by their duly authorized representatives.
FIDELITY NATIONAL INFORMATION FIDELITY NATIONAL FINANCIAL, INC.
SOLUTIONS, INC.
By: By:
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Name: Name:
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Title: Title:
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