EXHIBIT 10.16
MASTER SERVICES AGREEMENT
Between
Fidelity Information Services, Inc.
and
Fidelity National Financial, Inc.
TABLE OF CONTENTS
PAGE NUMBER
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ARTICLE 1. DEFINITIONS; RULES OF INTERPRETATION..................................................... 1
1.1 Definitions.............................................................................. 1
1.2 Rules of Interpretation.................................................................. 1
ARTICLE 2. TERM..................................................................................... 2
2.1 Initial Term............................................................................. 2
2.2 Renewal and Extensions................................................................... 2
ARTICLE 3. SERVICES................................................................................. 2
3.1 Services................................................................................. 2
3.2 FIS Responsible for all Service Providers and FIS Subcontractors......................... 4
3.3 Core Services............................................................................ 5
3.4 Base Services Agreements................................................................. 5
3.5 Statements of Work and Additional Services............................................... 6
3.6 License Management....................................................................... 7
3.7 Licenses and Permits..................................................................... 7
3.8 Change Control Procedures................................................................ 7
3.9 Product Discontinuation.................................................................. 7
3.10 Improved Technology and Practices........................................................ 8
3.11 Disaster Recovery and Component Recovery................................................. 8
3.12 Reports.................................................................................. 8
3.13 Compliance Environment................................................................... 9
3.14 Title to Work Product.................................................................... 9
ARTICLE 4. CUSTOMER SATISFACTION.................................................................... 10
4.1 Baseline FNF Satisfaction Survey......................................................... 10
4.2 FNF Satisfaction Survey.................................................................. 10
ARTICLE 5. SERVICE LEVELS; SERVICE LEVEL CREDITS; ADJUSTMENTS TO SERVICE LEVELS..................... 10
5.1 Services................................................................................. 10
5.2 Adjustment of Service Levels............................................................. 10
5.3 Failure to Perform; Root-Cause Analysis.................................................. 11
5.4 Service Level Credits.................................................................... 11
5.5 Priority of Recovery of Services......................................................... 11
5.6 Service Level Measurement................................................................ 12
5.7 Service Level Audit...................................................................... 12
ARTICLE 6. SERVICE LOCATIONS........................................................................ 12
6.1 FIS Service Locations.................................................................... 12
6.2 Safety and Security Procedures........................................................... 13
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ARTICLE 7. RELATIONSHIP MANAGEMENT; DISPUTE RESOLUTION.............................................. 15
7.1 Relationship Managers.................................................................... 15
7.2 Escalation Procedures.................................................................... 15
7.3 Continuity of Services................................................................... 17
ARTICLE 8. PROJECT STAFF............................................................................ 17
8.1 Project Staff............................................................................ 17
8.2 Account Manager; FTE's................................................................... 18
8.3 Onsite Resources......................................................................... 18
8.4 FIS Subcontractors....................................................................... 18
8.5 Conduct of FIS Personnel................................................................. 19
8.6 Conduct of FNF Personnel................................................................. 19
8.7 Personnel Recruitment.................................................................... 19
ARTICLE 9. PROPRIETARY RIGHTS IN SOFTWARE AND SYSTEMS............................................... 20
9.1 Identification of Software............................................................... 20
9.2 FNF Software............................................................................. 20
9.3 FIS Proprietary Software................................................................. 21
9.4 FIS Third Party Software................................................................. 22
9.5 Developed Software....................................................................... 23
9.6 Equipment................................................................................ 23
9.7 Systems.................................................................................. 23
ARTICLE 10. REQUIRED CONSENTS........................................................................ 23
ARTICLE 11. THIRD PARTY CONTRACT ADMINISTRATION AND MANAGEMENT....................................... 23
11.1 FIS Responsibilities..................................................................... 23
11.2 Third Party Invoices..................................................................... 24
ARTICLE 12. DATA..................................................................................... 24
12.1 Title to Data............................................................................ 24
12.2 Return of Data........................................................................... 24
12.3 Partial Return of Data................................................................... 24
12.4 Timing; Expense.......................................................................... 25
ARTICLE 13. INVOICES AND PAYMENTS.................................................................... 25
13.1 Fees..................................................................................... 25
13.2 Credits.................................................................................. 25
13.3 Taxes.................................................................................... 25
13.4 Proration................................................................................ 25
13.5 Invoicing and Payment.................................................................... 25
13.6 Rights of Set Off........................................................................ 26
13.7 Refundable Items......................................................................... 26
13.8 Inflation Adjustment..................................................................... 26
13.9 Pass-Through Expenses.................................................................... 26
ARTICLE 14. AUDITS................................................................................... 27
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14.1 Processing................................................................................ 27
14.2 Fee Audit................................................................................. 27
ARTICLE 15. FORCE MAJEURE; TIME OF PERFORMANCE........................................................ 28
15.1 Force Majeure............................................................................. 28
15.2 Time of Performance and Increased Costs................................................... 29
15.3 Sole and Exclusive........................................................................ 29
ARTICLE 16. CONFIDENTIALITY........................................................................... 29
16.1 Confidential Information.................................................................. 29
16.2 Work Product Privilege.................................................................... 30
16.3 Injunctive Relief......................................................................... 31
16.4 Unauthorized Acts......................................................................... 31
16.5 Publicity................................................................................. 31
16.6 Data Privacy.............................................................................. 31
ARTICLE 17. REPRESENTATIONS AND WARRANTIES............................................................ 31
17.1 Representations and Warranties............................................................ 31
17.2 Disclaimer................................................................................ 31
ARTICLE 18. TERMINATION............................................................................... 31
18.1 Termination for Convenience............................................................... 31
18.2 Termination............................................................................... 31
18.3 Termination for Insolvency................................................................ 31
18.4 Termination Assistance.................................................................... 31
ARTICLE 19. EXIT PLAN................................................................................. 31
19.1 Description of Termination Assistance Services............................................ 31
19.2 Implementation............................................................................ 31
ARTICLE 20. INDEMNIFICATION........................................................................... 31
20.1 Indemnification by FIS.................................................................... 31
20.2 Indemnification by FNF.................................................................... 31
20.3 FIS Intellectual Property Indemnification................................................. 31
20.4 FNF Intellectual Property Indemnification................................................. 31
20.5 Indemnification Procedures................................................................ 31
20.6 Contribution.............................................................................. 31
20.7 Limitation of Liability................................................................... 31
20.8 Exclusions................................................................................ 31
ARTICLE 21. WAIVER.................................................................................... 31
ARTICLE 22. INSURANCE................................................................................. 31
22.1 Coverage Required......................................................................... 31
22.2 Insurance Documentation................................................................... 31
ARTICLE 23. MISCELLANEOUS PROVISIONS.................................................................. 31
23.1 Notices................................................................................... 31
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23.2 Counterparts............................................................................. 31
23.3 Headings................................................................................. 31
23.4 Relationship............................................................................. 31
23.5 Severability............................................................................. 31
23.6 Entire Agreement......................................................................... 31
23.7 Amendments............................................................................... 31
23.8 Governing Law............................................................................ 31
23.9 Survival................................................................................. 31
23.10 Third Party Beneficiaries................................................................ 31
23.11 Acknowledgment........................................................................... 31
23.12 Covenant of Further Assurances........................................................... 31
23.13 Assignment............................................................................... 31
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EXHIBITS
Exhibit A Roles and Responsibilities
Exhibit B Professional Services
Exhibit C Base Service Agreements
Schedule C-1 Managed Operations Services
Schedule C-2 Network Operations Services
Schedule C-3 Messaging Services
Schedule C-4 ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Services
Schedule C-5 Application Development Services
Schedule C-6 Corporate Services
Schedule C-7 Security Services
Schedule C-8 Disaster Recovery Services
Exhibit D Fees
Exhibit E Fidelity Technology Centers
Exhibit F FNF Software as of the Effective Date
Exhibit G FNF Equipment as of the Effective Date
Exhibit H Service Levels
Exhibit I Termination Fees
Exhibit J Fidelity Information Security Policy
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MASTER SERVICES AGREEMENT, dated as of ________, 2004 (the "Effective
Date"), by and between Fidelity National Financial, Inc., a Delaware corporation
("FNF"), and Fidelity Information Services, Inc., an Arkansas corporation
("FIS"), (including all exhibits, attachments and Statements of Work, as may be
amended or appended from time to time, the "Agreement").
W I T N E S S E T H:
WHEREAS, FNF desires to obtain from FIS on the terms and conditions set
forth in this Agreement the information technology and related Services as
described in this Agreement and as set forth in the Exhibits and Schedules
attached hereto and made a part hereof; and
WHEREAS, FIS desires to provide to FNF such information technology and
related Services on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the agreements of the parties
set forth below, FNF and FIS agree as follows:
ARTICLE 1. DEFINITIONS; RULES OF INTERPRETATION
1.1 Definitions. The defined terms used in this Agreement have the meanings
referenced in Schedule I.
1.2 Rules of Interpretation.
(a) The term "including" means "including, without limitations" unless
the context clearly states otherwise.
(b) All references in this Agreement to Articles, Sections, Exhibits or
Schedules, unless expressed or indicated, are to the Articles,
Sections, Exhibits or Schedules to this Agreement.
(c) Words importing persons include, where appropriate, firms,
associations, partnerships, trusts, corporations and other legal
entities, including public bodies, as well as natural persons.
(d) Words importing the singular include the plural and vice versa.
Words of the masculine gender are deemed to include the correlative
words of the feminine and neuter genders.
(e) All references to a number of days mean calendar days, unless
expressly indicated otherwise.
(f) The recitals to this Agreement are deemed to be a part of this
Agreement.
(g) In the event of a conflict between the terms of any or all of the
body of this Agreement, the Statement of Work and any other Exhibit
or Schedule to this
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Agreement, the terms of this Agreement shall prevail to the extent
of such conflict.
(h) All reference herein to this Agreement shall include the exhibits
and schedules attached to this Agreement.
ARTICLE 2. TERM
2.1 Initial Term. The initial term of this Agreement (the "Initial Term")
commences as of the Effective Date and shall continue until the fifth
Anniversary of the Effective Date (the "Initial Term Expiration Date"),
unless terminated earlier pursuant to Article 18.
2.2 Renewal and Extensions.
(a) FNF shall have the right to renew (a "Renewal Right") this Agreement
upon the expiration of the Initial Term for a single one-year period
(the "One Year Renewal Period") or for a single two-year period (the
"Two Year Renewal Period"). Each such renewal period is referred to
herein as a "Renewal Period." If FNF intends to exercise a Renewal
Right, FNF shall provide FIS with a written notice of such intent (a
"Renewal Notice") at least six (6) months prior to the Initial Term
Expiration Date. FNF's failure to provide the Renewal Notice
permitted by this Section 2.2 shall be conclusive evidence of FNF's
intent not to exercise a Renewal Right. The Initial Term, along with
any Renewal Period are collectively referred to herein as the
"Term". Expiration Date shall be defined as the end of the Term
("Expiration Date").
(b) Upon receipt by FIS of a Renewal Notice, FNF and FIS shall commence
discussions relating to the terms and conditions of this Agreement
applicable to the Renewal Period. If, prior to the commencement of a
Renewal Period, FNF and FIS have not agreed upon the terms and
conditions applicable to this Agreement during such Renewal Period,
the Agreement shall be renewed for only the One Year Renewal Period
on the terms of this Agreement in effect on the Initial Term
Expiration Date.
(c) Each Statement of Work arising hereunder shall have an initial term
as specified therein but, in the absence of any specification, shall
be coextensive with the end of the Initial Term or then-current
Renewal Term and, subject to any right of earlier termination, shall
thereafter renew (or terminate) on the same dates and subject to the
same notice requirements as applicable to this Agreement.
ARTICLE 3. SERVICES
3.1 Services.
(a) As of the Effective Date and continuing throughout the Term, FIS
will provide to the FNF Entities (defined immediately following),
the information technology and related services that were provided
by or on behalf of FIS (and Subsidiaries) to FNF Entities
immediately prior to the Effective Date. For purposes of this
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Agreement, the term "FNF Entities" shall mean, collectively, at any
given time, each of (i) FNF and (ii) all partnerships, firms,
corporations, and entities which are, at that time, at least
majority owned or otherwise controlled by Fidelity National
Financial, Inc. but excluding, if otherwise applicable, Fidelity
National Information Services, Inc. and each Subsidiary. The parties
recognize that prior to the Effective Date, the services were
provided pursuant to an intercompany relationship and not pursuant
to a written agreement. Until such time as Service Levels have been
mutually agreed upon by the parties following the baseline effort
described in this Section, FIS shall provide the Services in the
same basic manner and quality as prior to the Effective Date. Such
services, together with Additional Services (defined herein below),
and services to be provided under Statements of Work, Base Services
Agreements, Exhibit B, Amendments, or an equivalent, made part of
this Agreement from time to time, are collectively referenced herein
as the "Services"; the resulting operating environment to exist at
the Effective Date is referenced as the "As Is environment". The
Roles and Responsibilities described in Exhibit A shall apply only
to the extent that a Base Service Agreement states that such
Services will be provided. To facilitate a more detailed
specification of the As Is environment, the parties shall mutually
agree upon a written documented baseline plan, with the assistance
of reputable, knowledgeable, mutually agreeable third party
consultants (at the expense of FNF), and mutually agree upon a
baseline of the As Is environment within sixty (60) days following
the Effective Date. The parties agree that to the extent that
Services are omitted in the descriptions in Exhibit C and from the
fees in Exhibit D, the parties will work together following the
Effective Date to memorialize the description of the Services in
Exhibit C along with the fees therefor.
(b) FIS and FNF shall jointly prepare a non-binding technology plan (the
"Technology Plan") within one hundred twenty (120) days after the
Effective Date, and create updated Technology Plans in accordance
with Section 3.10. Each Technology Plan after the first shall review
and assess the immediately preceding Technology Plan. The Technology
Plan shall consist of a three-year plan and an annual implementation
of the plan and shall include a comprehensive assessment and
strategic analysis of FNF's then-current IT systems and services for
the next three (3) years, including an assessment of the appropriate
direction for such systems and the Services in light of FNF's
business priorities and strategies and competitive market forces.
(c) The Services shall initially be provided at or from any of FIS's
Service Locations identified in Exhibit E ("FIS Technology Centers")
or from an FNF Location. Any change in service location to a
location other than an FIS Technology Center as of the Effective
Date shall be subject to the prior written approval of FNF, which
approval shall not unreasonably be withheld. "Ancillary Tasks" shall
mean those tasks, services, functions and responsibilities which are
incidental to and normally associated with the performance of the
Services, or are reasonably necessary to perform the Services, as
contemplated by this Agreement; Ancillary Tasks are included within
the concept and definition of Services and shall be
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performed by FIS to the same extent and in the same manner as if
specifically and expressly described as a Service.
(d) FNF and FIS agree that each of the FNF Entities shall have the right
to receive, use and benefit from the Services to be provided
pursuant to this Agreement. For purposes of this Agreement,
"Subsidiary" shall mean any corporation or other legal entity of
which Fidelity National Information Services, Inc. controls or owns,
directly or indirectly, more than fifty percent (50%) of the stock
or other equity interest entitled to vote on the election of the
members to the board of directors or similar governing body. FNF
shall be fully responsible for compliance by each FNF Entity with
the terms and conditions of this Agreement. FNF shall be the sole
point of contact for FIS for all requests, communications,
decisions, and approvals under this Agreement. FNF shall resolve,
and FIS shall not be responsible for, any conflicts among the FNF
Entities which affect FIS's performance of the Services. FIS shall
look solely to FNF for the payment of Fees. An entity which ceases
to be an FNF Entity shall, ipso facto, cease to enjoy rights
hereunder, but any of the FNF Entities may use its rights hereunder
to transition the former FNF Entity off the Services, for a
reasonable period, not to exceed twelve (12) months, without breach
hereof. In any such event, FNF shall continue to pay for Services
requested by FNF and provided by FIS in support of the transitioning
FNF entity or business and shall be responsible for the performance
of such transitioning entity in conformity with the terms and
conditions of this Agreement.
(e) Subject to Section 3.1(d) and Section 3.5 (Additional Services) and
subject to the terms of the applicable Base Service Agreement, FNF
shall have the right to add additional entities, additional volumes
and business units to this Agreement; provided that the addition or
deletion of such entities or business units does not materially
affect FIS's obligations under the Agreement. Any such increase or
decrease in volume resulting from the addition or deletion of
entities, additional volumes or business units shall be treated as
any other increase or decrease in the resource volumes invoiced to
FNF. FNF shall share information with FIS necessary to allow FIS to
determine which resources will be required to perform the Services
and any Additional Services (as defined in Section 3.5), subject to
applicable confidentiality restrictions.
3.2 FIS Responsible for all Service Providers and FIS Subcontractors. The
specific services to be provided under this Agreement shall be identified
in the Base Services Agreements, Statement(s) of Work, Exhibits and
Amendments to this Agreement as mutually agreed upon in writing by both
parties. FIS will provide the Services on its own and/or through one or
more subcontractors ("FIS Subcontractors") and FIS will be responsible and
liable for compliance by the FIS Subcontractors with all applicable laws
and regulations, the terms herein relating to confidentiality, data and
data security, and the Fidelity Information Security Policy (attached as
Exhibit J) and such additional terms as are identified by FNF to FIS as
being expressly required in any subcontract. FIS shall be fully
responsible for compliance by each FIS Subcontractor with the terms and
conditions of this Agreement and for policing and enforcing each
subcontract. FIS shall be the sole
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point of contact for all FIS Subcontractors for all requests,
communications, decisions, and approvals under this Agreement. FIS shall
resolve, and FNF shall not be responsible for, any conflicts among the FIS
Subcontractors which affect performance of the Services. FNF shall be
liable hereunder solely to FIS (and not to any subcontractor) for
performance of this Agreement by FNF (or FNF Entities). FIS's use of an
FIS Subcontractor in the performance of the Services under this Agreement
shall not, under any circumstances, operate to relieve FIS of any of its
obligations or liabilities under this Agreement or shift responsibility
therefore to FNF.
3.3 Core Services. The parties agree that as a result of the baselining effort
described in Section 3.1(a), certain Services will, upon mutual agreement
of the parties be deemed "Core Services." These Core Services may include:
(i) managed operations, (ii) network, (iii) e-mail/messaging, (iv) network
routing, (v) technology center infrastructure, (vi) active directory and
domains, (vii) security management, (viii) disaster recovery, (ix) systems
development and (x) business continuity. Notwithstanding any contrary
limitation of remedies for FIS failure to meet Service Levels, failure of
FIS to maintain agreed Service Levels for Core Services (as set forth in
Exhibit H or otherwise), may rise to a material breach of this Agreement
warranting termination, may accrue elevated Service Level Credits and may
be the subject of damage claims.
3.4 Base Services Agreements. All Base Services Agreements attached hereto as
a Schedule to Exhibit C (each a "Base Services Agreement" and
collectively, the "Base Services Agreements") form a part of this
Agreement. All applicable terms, conditions, responsibilities and delivery
schedules that apply to a particular Service are identified in the
applicable Base Services Agreement(s) and shall govern the provision of
the relevant Service. Each Base Services Agreement shall contain a
description of the Services to be performed, the applicable Fees and the
Service-specific terms, conditions, responsibilities and delivery
schedules which shall govern the provision of the relevant Services. All
consistent terms of the Agreement shall also apply to performance of each
of the foregoing Base Services Agreements. Unless otherwise agreed to in
writing by both parties, the Services to be rendered by FIS to FNF are
limited to those Services that are specifically described in the Base
Services Agreements and the related Ancillary Tasks. Any new terms,
conditions, responsibilities or delivery schedules which may be
specifically applicable to any particular Service, as they may be
negotiated through the course of business, shall be set forth in writing
and executed by the parties and added to this Agreement either as a new
Base Services Agreement, Statement of Work or as an amendment to this
Agreement. Such action shall not constitute a modification or change of
any provision of this Agreement or of any provision of any other Base
Services Agreement, unless expressly stated in such written agreement. In
the event of any conflict between the provisions of this Agreement and a
Base Services Agreement, the terms of this Agreement shall control unless
the Base Services Agreement expressly states that, in the event of
conflict with this specific Agreement (and not conflicting agreements
generally), the Base Services Agreement shall control.
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3.5 Statements of Work and Additional Services.
(a) FNF may from time to time request that FIS perform services that are
not specified herein (nor implied, as Ancillary Tasks) as being
included in the Services ("Additional Services"). Upon request by
FNF in writing to the FIS Relationship Manager in detail sufficient
for FIS to respond, FIS will promptly respond in an amount of time
appropriate to the complexity of project, but in no event more than
ten (10) days later, providing FNF, in writing, (1) (A) a
description in reasonable detail of the work FIS proposes to perform
to fulfill the request for Additional Services, including when
appropriate suggested software and/or hardware, (B) a schedule for
commencing and completing such Additional Services, and (C) FIS's
full prospective charges and/or rates for completing and/or
maintaining such Additional Services or (2) an estimate of time by
which FIS shall provide to FNF the information set forth in
subsections 3.5(a)(1)(A), (B) and (C) hereof.
(b) If FNF determines to move forward with such Additional Services, the
parties shall work together over an appropriate period of time, not
to exceed ten (10) days, to determine the following matters and
develop a schedule for an appropriate Statement of Work: (1) when
appropriate, any new software or hardware required by FIS to deliver
the Additional Services, (2) when appropriate, if requested by FNF,
the Designated Software, Equipment and run time requirements
necessary to develop and operate any new applications required to
deliver the Additional Services, (3) when appropriate, a description
of the human resources necessary to develop and provide the
Additional Services, (4) when appropriate, a list of any existing
applications or hardware necessary to be used in delivering the
Additional Services, and an assessment of the impact on then-current
Services supported by such applications and/or hardware, (5) when
appropriate, acceptance test criteria and procedures for any new
applications, products, packages or services which are part of any
Additional Services and (6) the applicable Fees. Thereafter, the
parties shall mutually agree upon the time frame for the completion
of the Statement of Work.
(c) If after FNF's receipt of FIS's initial response to FNF's request
for Additional Services containing the information set forth in
Section 3.5(a)(1), FNF determines to move forward with such
Additional Services it may elect, in writing, to have FIS promptly
commence performance of such Additional Services on a time and
materials basis, in accord with the FIS response and all applicable
terms herein, pending execution of a definitive Statement of Work
and for an FNF-specified period of not more than sixty (60) days.
Such interim work shall be performed on a time and materials basis
at the Professional Services Rate set forth in Exhibit B. If FNF
indicates to FIS its desire to negotiate a Statement of Work
pending, during or instead of, assuming a time and materials
arrangement, the Parties shall promptly commence negotiations
thereof. Either party may discontinue negotiation of the definitive
Statement of Work at such party's discretion at any time.
Alternatively, if the FIS response is not acceptable to FNF, FNF may
propose to, or request from, FIS a revision or refinement of the
form or substance
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of FIS's initial response. FIS will promptly (but in no event more
than five (5) days later) respond with (1) a revised proposal or (2)
an estimate of time by which FIS shall provide a revised proposal,
and the process described above may repeat. A request by FNF for a
revised proposal shall not be deemed a rejection of the original FIS
proposal which may be taken up on a time and materials basis at any
time within sixty (60) days of the relevant FIS response. If FIS
fails to timely respond to a request for revised proposal, FNF may,
for all purposes, deem such inaction as a rejection by FIS of the
opportunity to make a counter proposal.
(d) FIS shall not commence, nor shall FNF be liable to pay for, any
Additional Service unless and until FIS and FNF have entered into
either a time and materials agreement or Statement of Work (as
contemplated above) or an Amendment to this Agreement in accord with
Section 23.7 (Amendments). Upon entering into an agreement for
Additional Services, such Additional Services shall be deemed
included within the concept of Services.
3.6 License Management. Subject to FNF's prior written approval of FIS's
proposed acquisition of FNF Software (defined below) and the related Pass
Through Expenses, upon FNF's request, FIS shall obtain in FNF's name,
comply with and maintain (for so long as used to support Services) all
software licenses for FNF Software. FIS shall maintain, substantially
current, a log of all FNF Software and FIS Software used or accessed by
FNF or its customers and upon FNF's request from time to time shall
provide FNF with a Report (i) identifying all current software comprising
FNF Software and FIS Software used or accessed by FNF or its customers and
(ii) describing any unresolved disputes or contract claims arising under
those licenses obtained by FIS in FNF's name.
3.7 Licenses and Permits. FIS, at its expense, and with FNF's reasonable
assistance, shall obtain all business licenses and permits required by any
applicable legal requirement, including laws, regulations, rules, orders,
decrees or legislative enactments of any kind which FIS is required to
have obtained in order to perform the Services.
3.8 Change Control Procedures. The change control procedures initially
applicable hereto shall be those described in Section 4.1 of Exhibit A
hereto (the "Change Control Procedures"). In the event information
contained in any documentation is no longer accurate or current due to the
implementation of a change, FIS shall revise the impacted documentation
and provide revised documentation to FNF within five (5) days after such
change. Upon reasonable notice to FIS, and to the extent relevant to any
such change, FIS shall provide FNF access to FIS's operations procedures
which relate to the provision of the Services, as documented by FIS, and
subject to FIS's confidentiality obligations to third parties.
3.9 Product Discontinuation. With respect to any FNF Equipment, FNF Third
Party Software or FIS Software used in connection with the provision of
the Services under this Agreement which is scheduled for discontinuation
by the manufacturer thereof, FIS will provide FNF with written notice of
such planned discontinuation and will make recommendations for
replacement.
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3.10 Improved Technology and Practices.
(a) Within thirty (30) days after each January 1 and July 1 during the
Term, the Management Committee (as defined in Section 7.1) will
review actual information technology trends during the previous
calendar year based on objective third-party information presented
by either party and update the Technology Plan accordingly. Subject
to the Change Control Procedures of this Agreement, FIS shall cause
the Services to evolve and to be modified, enhanced, supplemented
and replaced as necessary for the Services to keep pace with
technological advances and advances in the methods of delivering
services, at least to the extent that such advances are at the time
pertinent in general use within the insurance industry. FIS shall
not be required under the terms of this Agreement to replace
equipment, software or other technology in less than three (3) years
after its acquisition by FIS provided that: (1) at the time of
acquisition the equipment, software or other technology was current,
in so far as such equipment, software or technology was in general
use in the financial institution industry, (2) FIS did not know or
have reason to know that such equipment, software or other
technology was likely to become obsolete in less than eighteen (18)
months after acquisition and; (3) FIS can establish that it is
unable to re-deploy such previously acquired technology to other
uses for FNF or other FIS customers. FNF recognizes that such
advances may be dependent upon the FNF Proprietary Software and
Equipment.
(b) Any change in the technology used by FIS to provide the Services
including changes which might materially affect FIS's internal
connectivity or architecture shall be implemented pursuant to the
Change Control Procedures.
3.11 Disaster Recovery and Component Recovery.
(a) On or prior to August 15, 2004, FIS shall develop and submit to FNF
for its approval a disaster recovery and processing restoration plan
for the portion of the Services upon which the parties mutually
agree. The parties shall mutually agree upon the scope of such
effort in accordance with Exhibit B (Professional Services). FIS and
FNF shall diligently pursue mutual approval of such plan and shall
include such plan as Schedule C-8 (Disaster Recovery Services
Agreement) to this Agreement to conclude same no later than sixty
(60) days following the submission of same to FNF. FIS shall test
the disaster recovery and processing restoration plan in accordance
with Schedule C-8.
(b) Upon the occurrence of an outage or interruption of Services
involving a component or components of the System or FNF Proprietary
Software covered by the disaster recovery and processing restoration
plan, FIS shall provide the recovery and restoration Services
described in the relevant Base Services Agreement.
3.12 Reports. During the Term and the Termination Assistance Period, FIS will
continue to provide to FNF those reports, including without limitation
Service Level Reports and
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business reports which FIS or any Subsidiary is providing to any FNF
Entity as of the date of execution hereof, on the current schedule
therefor or as subsequently agreed, together with such additional reports
as are specified herein or as may be reasonably requested by FNF from time
to time (collectively, the "Reports" and each, a "Report"), including,
specifically, a monthly report of actual Service Levels as contrasted to
then-current contract Service Levels. Expenses of monitoring FNF
performance or otherwise enabling relevant data capture, and otherwise of
providing the Reports, shall be borne by FIS. Reports shall be provided in
electronic copies.
3.13 Compliance Environment. FIS acknowledges that FNF and certain FNF Entities
are subject to various general and industry-specific laws and regulations,
and that FNF has promulgated and provided to FIS (and will promulgate from
time to time and provide to FIS) various internal policies to assure
compliance with such laws and regulations. FNF shall apprise FIS from time
to time of laws and regulations uniquely applicable to FNF Entities to the
extent regulated by State Departments of Insurance, and of proposed
changes to such laws and regulations and, when applicable, anticipated
effective dates (each, a "Regulation"). To the extent that such
Regulations and/or the Fidelity Information Security Policy have an impact
on the Services, FNF will advise FIS of such impact and the Services
(including, if appropriate, adjustments to the Service Levels and the Fees
therefor) shall be adjusted appropriately pursuant to the Change Control
Procedures. Subject to the foregoing, FIS will operate and deliver its
Services in compliance with the Fidelity Information Security Policy. All
changes to the Services shall be made in accordance with the Change
Control Procedures. Subject to mutually agreed upon lead times for
implementation, all Services shall be performed by FIS and FIS
Subcontractors in a manner consistent with Regulations as made known to
FIS from time to time and reflected in the Services pursuant to Change
Control Procedures, modifying operations and practices as necessary.
3.14 Title to Work Product. FIS agrees that each item of FIS work product that
constitutes FNF Software or FNF Data or changes thereto created by or for
FIS by reason of its undertakings to provide Services to FNF (excluding
all Confidential Information of FIS and its Subsidiaries), including
without limitation software, data bases, files, compilations, logs and
reports is, to the extent applicable, a "work made for hire" as defined
under U.S. copyright law and that, as a result, FNF shall own all
copyrights in such work product as it arises or otherwise comes into
being. To the extent that such work product does not qualify as a work
made for hire under applicable law, and/or to the extent that any of the
foregoing includes content subject to copyright, patent, trademark, trade
secret, or other intellectual property rights, FIS hereby continuously
assigns to FNF, its successors and assigns, all right, title and interest
in and to any such work product as the same arises or otherwise comes into
being during the Term, including all copyrights, patents, trademarks,
trade secrets, and other proprietary rights therein (including renewals
thereof). From time to time during or following the Term, FIS shall
execute and deliver to FNF such additional instruments, and take such
other actions, as FNF may reasonably request to confirm, evidence or carry
out the grants of rights contemplated by this paragraph.
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ARTICLE 4. CUSTOMER SATISFACTION
4.1 Baseline FNF Satisfaction Survey. FIS shall administer a baseline customer
satisfaction survey, in form and content reasonably satisfactory to FNF,
and compile and share the results with the FNF Relationship Managers, no
later than December 31, 2004, with content and scope, and pursuant to
procedures, agreed between FNF and FIS. The survey conducted pursuant to
this Section 4.1 will constitute the baseline for measurements of
performance improvements described in Section 4.2.
4.2 FNF Satisfaction Survey. At least once every twelve (12) months and, at
FNF's request, up to two (2) times in any year on or about dates specified
by FNF on no less than thirty (30) days' notice, FIS shall conduct a
customer satisfaction survey. The survey must, at a minimum, cover (a)
end-users of the Services and (b) senior management of end-users. The
content, scope, method and timing of the above surveys are subject to
FNF's and FIS's prior agreement, and must be consistent with the baseline
FNF survey conducted pursuant to Section 4.1 except that any new
application or Service will be included in any such survey undertaken more
than thirty (30) days following implementation of such application or
Service. FIS will make reasonable efforts to increase FNF satisfaction
throughout the Term. FIS will use reasonable efforts to make an increase
in FNF satisfaction a key performance incentive in connection with the
compensation for key executives of FIS assigned to FNF's account.
ARTICLE 5. SERVICE LEVELS; SERVICE LEVEL CREDITS; ADJUSTMENTS TO SERVICE LEVELS
5.1 Services. At all times FIS's level of performance shall be at least equal
to specific Service Levels identified in or pursuant to this Agreement, as
such Service Levels may be modified from time to time. All Services
hereunder (including but not limited to Ancillary Tasks and Additional
Services) shall also be performed in accordance with the Base Services
Agreements.
5.2 Adjustment of Service Levels. FIS shall use reasonable efforts throughout
the Term to continuously improve the quality and efficiency of its
performance of the Services taken as a whole. Either FNF or FIS may, upon
notice to the other party, no more frequently than two (2) times in any
calendar year, initiate negotiations to review and, upon agreement by FNF
and FIS, adjust the Service Level(s) which such party in good faith
believes is inappropriate, ineffective or irrelevant at that time or to
reflect improved efficiencies and/or capabilities enabled by advances in
technology, processes and methods implemented by FIS, including without
limitation changes pursuant to the Technology Plan. During such reviews,
FIS shall work with FNF to identify possible cost/service level tradeoffs
(but any resulting changes in the Service Levels shall be implemented only
if mutually agreed). The Parties expect and understand that the Service
Levels shall improve over time. As new technologies and processes are
introduced, the Parties shall establish additional Service Levels
reflecting industry appropriate practices for those technologies and
processes. Until such time as such additional Service Levels for those
technologies and processes are agreed upon by the parties, FIS shall
provide
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Services in no event at a level less than provided by FIS to any other of
its similarly situated customers, internal or external.
5.3 Failure to Perform; Root-Cause Analysis. If FIS becomes aware of its
failure to meet any Service Level, whether through internal monitoring or
by receipt of notice from FNF, (each such event being a "Failure
Recognition Event"), FIS shall promptly assess the nature, severity and
tractability of the failure and provide either a solution or work-around
with respect to such failure within twenty-four (24) hours of the Failure
Recognition Event (or within any lesser period which may be required by
Exhibit H or otherwise with respect thereto) and, if providing a
work-around, will correct such failure as promptly as possible, but in any
event within five (5) days of the Failure Recognition Event (or within any
lesser period which may be required by Exhibit H or otherwise with respect
thereto), at no additional cost to FNF. FIS shall use reasonable
commercial efforts to minimize the time that a work around (as opposed to
a solution) is utilized. FIS shall complete a root cause analysis within
fifteen (15) calendar days of the Failure Recognition Event. During such
process, FIS shall keep FNF apprised of progress toward a resolution.
Further, FIS shall, at its expense, promptly investigate, assemble and
preserve pertinent information with respect to, and report on the causes
of, the problem causing the Service Level failure, including performing a
root cause analysis of the problem to identify the cause of such failure.
In the event the root cause analysis reflects that FNF, FNF Third Party
Software except that FNF Third Party Software licensed by FNF that is not
FNF Approved Software (as such term is defined below) or FNF Equipment was
the primary basis in FIS's failing to meet the Service Level or if such
failure is due to an exception to Service Level performance, FIS will
promptly provide FNF with a complete copy of such root cause analysis
including a detailed description of the causes of the failure and the
actions taken by FIS to correct such failure and, in such event, FNF shall
reimburse FIS for any out of pocket costs or expenses incurred by FIS for
correction of such failure. In addition, FIS shall be excused from the
compliance of applicable Service Levels and the payment or credit of any
Service Level Credits to the extent such performance is within one or more
of the Service Level exceptions reflected on Schedule H.
5.4 Service Level Credits. In the event of a failure of FIS to provide the
Services in accordance with the applicable Service Levels set forth on
Exhibit H, FIS will incur the Service Level Credits identified in, and
according to, the schedule set forth in Exhibit H. Except as expressly set
forth herein, FNF's sole and exclusive monetary remedy for FIS's failure
to comply with Service Levels for those Services for which FNF has elected
to receive Service Level Credits, shall be the Service Level Credits; FNF
nonetheless may exercise any applicable right of whole or partial
termination provided for in Section 18 of this Agreement to the extent
that the facts and circumstances so justify.
5.5 Priority of Recovery of Services. Until such time as the baseline has been
completed and the terms and conditions of the Base Services Agreement for
Disaster Recovery Services have been agreed upon, FIS shall give the
recovery of its capabilities to perform the Services and the resumption of
its actual performance of the Services the same or greater priority it
gives to recovering its capabilities to perform services and resuming its
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performance of those services for any other similarly situated customer of
FIS and FIS's own operations.
5.6 Service Level Measurement. FIS shall utilize the necessary measurement and
monitoring tools and procedures required to measure and report FIS's
performance of the Services against the applicable Service Levels. Such
measurement and monitoring shall permit reporting at a level of detail
sufficient to verify compliance with the Service Levels, and shall be
subject to audit by FNF as described below in Section 5.7. FIS shall
provide FNF with information regarding such tools and procedures upon
request, for purposes of verification, project and contract management.
5.7 Service Level Audit. FNF may, at FNF's expense, audit the operations,
procedures, policies and Service Levels of FIS relevant to the Services
and this Agreement, on ten (10) business days prior written notice to FIS
and at times mutually agreeable by FIS so as to not materially disrupt the
operations of FIS, acting itself (a "Service Level Auditor"). The Service
Level Auditor shall perform a review and audit of FIS's performance of the
Services in relation to the required Service Levels (a "Service Level
Audit"). If the Service Level Auditor is required to prepare and submit to
FNF a written report of the results of the Service Level Audit (a "Service
Level Audit Report"), FNF will deliver to FIS a copy of the Service Level
Audit Report within thirty (30) days of FNF's receipt thereof.
ARTICLE 6. SERVICE LOCATIONS
6.1 FIS Service Locations. The Services will be provided from one or more of
FIS's data centers or other service locations designated by FIS and agreed
by FNF (collectively, the "FIS Service Location(s)") or from an FNF
Location, as set forth in the applicable Base Services Agreement. In the
event FIS proposes to move an FIS Service Location, or the support of a
Service Component (either, a "FIS Service Location Move"), FIS shall
provide FNF no less than sixty (60) days prior written notice of such
proposed move specifying the Service Components affected and the current
and future proposed supporting FIS Service Location. Within thirty (30)
days after such notice, FIS and FNF shall agree, in writing, as to the
scope of such FIS Service Location Move and any assumptions underlying the
FIS Service Location Move which might affect costs or expenses of FNF
caused by such FIS Service Location Move. Within thirty (30) days after
such agreement, FNF will give to FIS, in writing, a description of those
costs and expenses which FNF in its reasonable and good faith judgment
anticipates will be caused by the FIS Service Location Move ("Move Expense
Summary"). Within sixty (60) days after an FIS Service Location Move
occurs, FIS shall credit to FNF those costs and expenses of FNF which FNF
establishes were caused by the FIS Service Location Move, but not more
than 110% of the amount specified for each cost or expense in the Move
Expense Summary.
If the scope of, or assumptions underlying, the FIS Service Location Move
change from those to which the parties agreed, the parties will agree in
good faith to make an equitable adjustment to the Move Expense Summary to
reflect such differences. Labor costs caused by the FIS Service Location
Move shall be based on FNF's actual salary and
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Master Services Agreement
benefit expense for such labor. FNF shall provide FIS with the project
plan for expenses incurred in connection with the FIS Service Location
Move (the "FIS Service Location Project Plan") promptly following the
completion of the FIS Service Location Move. The FIS Service Location
Project Plan shall indicate the time spent by each FNF personnel in
connection with the FIS Service Location Move in bi-monthly increments, a
description of such personnel's activities, the direct payroll expense for
such personnel and the direct non-payroll expenses incurred for such
personnel.
6.2 Safety and Security Procedures.
(a) FIS shall maintain and enforce, at the FIS Service Locations, safety
and security procedures that are at least (i) compliant with
Regulations and the Fidelity Information Security Policy in
accordance with FIS's obligations under Section 3.13, (ii) equal to
industry standards for such FIS Service Locations, and (iii) as
rigorous as those procedures in effect at the FIS Service Locations
as of the Effective Date. FIS shall investigate and remedy any
Security Incident (as defined below) at the FIS Service Locations,
if applicable, in accordance with the provisions of this Section.
(b) At the FIS Service Locations, FIS shall maintain and comply with
safeguards against the destruction, loss or alteration of FNF Data
(as defined in Section 12.1) (the "Data Safeguards") which are at
least (i) compliant with the requirements of Section 3.13, (ii)
equal to generally accepted insurance industry standards, and (iii)
as rigorous as those procedures used in protection of its own
similar data as of the Effective Date. The safeguards shall include
(1) FNF Data back up and storage which is separate from that of
other FIS customers, and (2) upon request, reports of appropriate
logs of the internal FIS firewall(s), FIS leveraged firewalls used
to deliver FNF services or FIS-managed, FNF-dedicated firewalls
which separate the FNF segment from other FIS segments (except that
FIS reserves the right to mask certain sensitive information (i.e.,
FIS internal or other FIS customer IP addresses)). All changes to
the firewall rule sets which will affect the delivery of the
Services shall be made in accordance with Change Control Procedures.
FNF shall be permitted to conduct, or to cause FIS to engage a third
party (who is not a competitor and is mutually agreeable to FIS) to
conduct, at FNF's expense and no more frequently than once a year, a
review of FIS's information security management, the FIS firewall
rule sets for the internal FIS firewall(s) which separate the FNF
segment from other FIS segments or leveraged firewalls used to
deliver FNF services (except that FIS reserves the right to mask
certain sensitive information (i.e., FIS internal or other FIS
customer IP addresses)), FIS-managed FNF-dedicated firewalls and any
other security procedures implemented at the FIS Technology Centers
with respect to the Systems at the FIS Technology Centers upon
reasonable notice (which shall be no less than ten (10) days notice
for such reviews by auditors and inspectors designated by FNF and
upon request, regardless of advance notice (a) to the extent FNF is
required to conduct such a review for compliance with law and (b)
for such reviews by FNF regulators) and so as to not disrupt FIS
business operations. Such access shall be provided to FNF in
accordance with FIS'
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security and audit guidelines (i.e., access will be provided at the
applicable FIS Service Location with the assistance of FIS personnel
and shall include the opportunity to review but not copy the logs).
FIS shall cooperate fully with any FNF investigation of a Security
Incident. Such collaboration shall include permitting FNF access to
internal audit data and logs of communications traffic pertinent to
the Security Incident, provided that FIS shall not be required to
disclose any information regarding other customers of FIS.
(c) FIS shall maintain in effect at all times, and promulgate, within
FIS and FIS Subcontractors performing Services, a Security Incident
response plan, describing procedures for FIS to follow in the event
of any actual (i) unauthorized use, access, disclosure, theft,
manipulation and/or reproduction of FNF Data, and/or (ii) security
breach of the Systems associated with the accessing, processing,
storage, communication and/or transmission of FNF Data (a "Security
Breach") or if FIS or FNF has a reasonable cause to believe that
such a Security Breach has occurred or will occur (collectively, a
"Security Incident"). This Security Incident Response Plan will
include a documented escalation procedure and a process for
notifying FNF immediately upon FIS's becoming aware of a Security
Incident without regard to incident point of origination.
Communication to FNF as to a Security Incident should, in the first
instance, be directed to the FNF Relationship Manager within one (1)
hour of FIS's awareness thereof), in a manner and timeframe
consistent with California's Security Breach Notification Act and
any other applicable law and/or regulation.
(d) Subject to appropriate protections of third party confidential
information, FNF may elect, with FIS's cooperation, to observe any
FIS investigation associated with any such Security Incident and FIS
will, in any event, keep FNF informed of all progress and actions
taken in response to each Security Incident. FNF in its sole
discretion will determine whether to provide notification to
customers, employees or agents concerning a breach or potential
breach of security or any other type or form of Security Incident.
Furthermore, FNF, and not FIS, will determine the need for and will
have the sole authority to initiate disclosure to appropriate
government authorities in the event of a security breach, unless
such disclosure by FIS is mandated by applicable law or regulation.
(e) FIS agrees to maintain on all Systems associated with access,
processing, storage, communication and/or transmission of FNF Data,
a continuous monitoring program to enable early detection of any
known or suspected instance of unauthorized use, access, disclosure,
theft, manipulation, reproduction and/or possible Security Incident.
(f) To the extent that any of the Services are provided from a location
other than an FIS Service Location, including but not limited to
locations or facilities provided by FNF to FIS for the purposes of
providing the Services (a "FNF Location"), FIS shall comply with
those safety and security procedures that are in effect at such FNF
Location and of which FIS is aware or reasonably should be aware. To
the extent FNF's personnel are present at the FIS Service Location
in connection with
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the performance of the Services, FNF shall comply with those safety
and security policies and procedures imposed by FIS at FIS Service
Locations of which FNF is aware or reasonably should be aware.
ARTICLE 7. RELATIONSHIP MANAGEMENT; DISPUTE RESOLUTION
7.1 Relationship Managers. Each party will designate a relationship manager,
who initially will be ▇▇▇ ▇▇▇▇▇▇ for FIS (the "FIS Relationship Manager")
and ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ VillacortaBuer for FNF (the "FNF
Relationship Managers") (collectively, the "Management Committee"). The
Management Committee shall meet at least once each month during the Term
to discuss any matters related to the Services or this Agreement. The FNF
Relationship Managers will serve as the primary points of contact for FIS
with respect to this Agreement. The FIS Relationship Manager will have
overall responsibility for day-to-day management and administration of the
Services provided under this Agreement and will serve as the primary
contact for FNF with respect to this Agreement. The FIS Relationship
Manager shall, at the request of FNF and with reasonable notice, attend
any meeting related to this Agreement, the Systems, the FNF Proprietary
Software or any of the Services, at FIS's expense. If either party elects
to replace a Relationship Manager, the replacement shall have the
background, experience and qualifications necessary to perform his or her
assigned duties and such party shall give the other party reasonable
notice of such replacement.
7.2 Escalation Procedures.
(a) All disputes, controversies, or claims arising out of or relating to
this Agreement, ("Dispute(s)") shall be settled as set forth in this
Section 7.2 (unless excepted pursuant to Section 7.2(d), 12.2 or
16.3). Disputes shall be initially referred to the Management
Committee prior to escalation to First Tier Management (as defined
below). If the Management Committee is unable to resolve, or does
not anticipate resolving, a Dispute within ten (10) days after
referral of the matter to it, then either party shall submit the
Dispute to the First Tier Management.
(b) Each party will designate a first tier manager, who will initially
be the Senior Vice President - currently ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, for FIS and
Chief Administrative Officer of FNF, currently ▇▇ ▇▇▇▇▇ for FNF
(collectively, the "First Tier Management"). The First Tier
Management shall meet at least once every two (2) months during the
first year hereunder, and thereafter with such frequency as the
First Tier Management may mutually agree, but in no event less
frequently than once every ninety (90) days, for the purposes of (a)
discussing the status of matters related to the Services, FIS
performance, and any other matters and (b) resolving Disputes that
may arise under this Agreement. The First Tier Management shall
consider Disputes in the order such Disputes are brought before it.
The First Tier Management shall negotiate in good faith and each use
commercially reasonable efforts to resolve such Dispute. The
location, format, frequency, duration and conclusion of these
elevated discussions shall be left to the discretion of the
representatives involved subject to the last sentence of this
Subsection 7.2(b). Upon agreement, the representatives may utilize
other
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alternative dispute resolution procedures to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be treated
as confidential information developed for purposes of settlement,
exempt from discovery and production, which shall not be admissible
in 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. If the First Tier management is unable to resolve, or
does not anticipate resolving, a Dispute within twenty (20) days
after referral to it, the parties must submit the Dispute to the
Executive Management (as defined below) pursuant to Subsection
7.2(c).
(c) If the negotiations conducted pursuant to Section 7.2(b) do not lead
to resolution of the underlying Dispute to the satisfaction of a
party involved in such negotiations, then either party may notify
the other in writing that he desires to elevate the Dispute to the
President of FIS, currently ▇▇▇▇▇ ▇▇▇▇▇, and the President of FNF,
currently ▇▇▇▇▇ ▇▇▇▇▇, (collectively, the "Executive Management")
for resolution. Upon receipt by the other party of such written
notice, the Dispute shall be so elevated and the President of FIS.
and the President of FNF shall negotiate in good faith and each use
commercially reasonable efforts to resolve such Dispute within
thirty (30) days. The location, format, frequency, duration and
conclusion of these elevated discussions shall be left to the
discretion of the representatives involved. Upon mutual agreement,
the Dispute may be mediated before either party may resort to
litigation. Upon agreement, the representatives may utilize other
alternative dispute resolution procedures to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be treated
as confidential 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.
(d) In the event that a Dispute is not resolved within thirty (30) days
after the referral of the Dispute to the Executive Management,
either party may refer the Dispute to binding arbitration in
accordance with the then current versions 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. The parties agree to participate in the management
escalation process described in this Section 7.2 (the "Escalation
Process") to its conclusion and not to terminate negotiations
concerning resolution of the matters in dispute until the earlier of
conclusion of the Escalation Process or termination or expiration of
this Agreement. Each party agrees not to commence an arbitration
action or seek other remedies prior to the conclusion of the
Escalation Process, provided that either party may commence an
arbitration action on any date (i) if, within the thirty (30) days
thereafter, the commencement of a judicial claim might be barred by
an applicable statute of limitations or (ii) in
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order to request an injunction to prevent irreparable harm. In such
event, the parties agree (except as prohibited by court order) to
continue to participate in the Escalation Process to its conclusion
and to toll the statute of limitations until thirty (30) days after
conclusion of the internal Escalation Process.
7.3 Continuity of Services. In the event of a Dispute between FNF and FIS
pursuant to which FNF in good faith and reasonably believes it is entitled
to withhold payment and during the pendency of the dispute resolution
process described in this Article 7, FIS shall continue to provide the
Services and FNF shall continue to pay any undisputed amounts to FIS. If
the Dispute relates to performance of the Services to which a Service
Level Credit is applicable, FNF may withhold only an amount equal to that
part of the Service Level Credit which are disputed by FNF. If (i) a
Dispute is not resolved within thirty (30) days after such disputed
amounts would have been payable had such amounts not been disputed, and
(ii) a Dispute or series of Disputes involves amounts totaling greater
than $100,000, the party initially taking the Dispute to the Management
Committee (the "Disputing Party") shall pay the disputed amount (the
"Deposit Amount") into an interest-bearing account with a mutually
agreeable independent financial institution (the "Deposit Institution")
pending resolution of such Dispute or Disputes. During the pendency of any
Dispute, the Deposit Amount shall be deemed for tax purposes the property
of the Disputing Party and all income on the Disputed Amount shall be
income of the Disputing Party and it shall file its tax return consistent
with such treatment. Each party agrees to payment by the Deposit
Institution to the Disputing Party, as and when necessary, the cumulative
annual tax due arising from interest due earned on the Disputed Amount.
Upon resolution of the Dispute with respect to which any Deposit Amount
has been placed with a Deposit Institution, the parties shall allocate the
Deposit Amount and any fees relating to opening and maintaining the
Deposit Amount with the Deposit Institution, plus any interest earned on
the Deposit Amount or taxes paid on such interest, in accordance with the
resolution of the Dispute. For any Dispute, FIS shall continue to perform
the Services at the Service Levels and FNF shall continue to pay for such
Services and any Additional Services pending the completion of the Dispute
resolution procedure described in Article 7 subject to the foregoing
provisions of this Section 7.3.
ARTICLE 8. PROJECT STAFF
8.1 Project Staff. Subject to the terms of this Article 8, FIS shall appoint
and manage individuals with suitable training and skills as described in
this Section 8.1 to perform the Services (the "Project Staff"). FIS shall
notify FNF as soon as possible after any Project Staff member dedicated to
the Services resigns or is dismissed or for any other reason will no
longer be performing Services, whether on a permanent or temporary basis.
The Project Staff assigned to perform FIS's obligations under this
Agreement shall have experience, training, and expertise equal to
personnel with similar responsibilities in the business in which FIS is
engaged and shall have sufficient knowledge of the relevant aspects of the
Services, and shall obtain sufficient knowledge of the practices and areas
of expertise of each FNF Entity, to enable them to efficiently and
effectively perform their duties and responsibilities under this
Agreement. If FNF reasonably and in good faith recommends the removal of a
Project Staff member dedicated to providing the Services to FNF from FNF's
account, FIS shall discuss FNF's recommendation and if,
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after such discussion, FNF still wishes the removal, FIS shall remove the
Project Staff member. If FNF reasonably and in good faith recommends the
removal of a Project Staff member who FIS is leveraging in providing the
Services to FNF from FNF's account, FIS shall discuss FNF's recommendation
in good faith and either remove the Project Staff member or offer other
commercially reasonable alternatives to address FNF's concerns. Nothing
herein gives FNF the right to affect the employment relationship between
FIS and any employee of FIS.
8.2 Account Manager; FTE's. FIS shall assign a team of account managers on a
full time basis to serve on FNF's account (the "Account Managers"). Such
Account Managers shall initially be ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇. FIS shall
retain the initial Account Managers throughout the Term to the extent
reasonably practicable. Upon FNF's request, and subject to availability,
FIS shall assign additional FTE's beyond the two (2) included Account
Managers to FNF's account for such additional fees as are agreed upon by
FNF and FIS at the time of assignment of such resources. "FTE" means full
time equivalent personnel resources provided by FIS which shall consist of
an individual or combination of individuals as determined by FIS. If FNF
reasonably and in good faith recommends the removal of an Account Manager
from FNF's account, FIS shall discuss and in good faith consider FNF's
recommendation.
8.3 Onsite Resources. To the extent existing and available to FNF, and without
charge to FIS, FNF agrees to provide FIS with adequate premises, in good
repair, to perform FIS's responsibilities at an FNF Location under this
Agreement. Without limiting the generality of the foregoing, FNF agrees to
supply water, sewage, heat, lights, telephone lines and equipment, air
conditioning, electricity, daily janitorial services, cafeteria services
and office equipment and furniture, and parking spaces for FIS employees
under the same conditions provided to employees of FNF in like positions.
FNF will provide telephone instruments and telephone service. In the event
FNF desires to move the FNF location after the Effective Date, FNF shall
provide FIS prior notice of such move and pay FIS for any reasonable costs
incurred by FIS because of such move.
8.4 FIS Subcontractors. FIS may subcontract any of the Services to any FIS
Subcontractor in accordance with Section 3.2 above, and shall give FNF
reasonable notice thereof in writing. Notwithstanding the foregoing, FIS
shall perform the Services substantially through the use of its own
employees and may subcontract only those tasks typically subcontracted in
the information technology outsourcing industry. FIS shall not subcontract
any Services which give an FIS Subcontractor access to FNF Data to a
Direct Competitor of FNF. FNF shall have the right to direct FIS to
replace any FIS Subcontractor with access to FNF Data within a reasonable
period of time if the FIS Subcontractor's performance is materially
deficient, results in misuse or disclosure of the FNF Data, or there have
been material misrepresentations by or concerning the FIS Subcontractor.
Additionally, if FNF has good faith doubts concerning the FIS
Subcontractor's ability to render future performance because of changes in
the FIS Subcontractor's ownership, management, financial condition, or
otherwise, FIS shall discuss such concerns with FNF and work in good faith
to resolve FNF's concerns on a mutually acceptable basis. "Direct
Competitor" shall mean First American Real Estate Corporation, its
successors and assigns, and such other entities and their successors and
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assigns operating primarily in the title insurance industry. If FIS
becomes aware that an FIS Subcontractor (or an affiliate of an FIS
Subcontractor) becomes (or becomes acquired by) a Direct Competitor, FIS
shall give prompt notice to FNF. Within thirty (30) days after FNF has
given FIS notice of FNF's desire to remove such FIS Subcontractor, FIS
shall provide FNF with an estimate of the costs and expenses which FIS in
its reasonable and good faith judgment anticipates will be required for
such removal ("Removal Expense Summary"). If FNF approves the Removal
Expense Summary, FIS shall remove the FIS Subcontractor as soon as
reasonably practicable and in any event within one hundred and twenty
(120) days after FNF approval of the Removal Expense Summary. Within sixty
(60) days after removal, FNF shall pay to FIS those costs and expenses of
FIS which FIS establishes were caused by the removal, but not more than
110% of the amount specified for each cost or expense in the Removal
Expense Summary. If the scope of, or assumptions underlying the removal
change from those to which the parties agreed, the parties will agree in
good faith to make an equitable adjustment to the Removal Expense Summary
to reflect such differences. Labor costs caused by the removal shall be at
FIS's actual salary and benefit expense for such labor.
8.5 Conduct of FIS Personnel. While at any FNF location, FIS's personnel,
contractors, and FIS Subcontractors shall comply with FNF's reasonable
requests, rules, and regulations regarding personal and professional
conduct (including the wearing of an identification badge and adhering to
regulations and general safety practices or procedures) as communicated to
FIS and otherwise conduct themselves in a businesslike and professional
manner. If FNF determines that a particular employee, contractor, or
subcontractor is not conducting himself or herself in the manner required
pursuant to this Section 8.5, FNF may notify FIS. Upon such notice, FIS
shall promptly investigate the matter and take appropriate action which
includes, at FIS's reasonable discretion, removing such employee,
contractor or subcontractor from the Project Staff and providing FNF with
prompt notice of such removal. If such employee, contractor or
subcontractor is removed, FIS shall replace such employee, contractor or
subcontractor with an individual with at least such experience,
qualifications and technical skills suitable to, and generally required in
connection with, the duties attendant to the position to be filled.
8.6 Conduct of FNF Personnel. While at any FIS location, FNF's personnel,
contractors, and subcontractors shall comply with FIS's reasonable
requests, rules, and regulations regarding personal and professional
conduct (including the wearing of an identification badge and adhering to
regulations and general safety practices or procedures) as communicated to
FNF and otherwise conduct themselves in a businesslike and professional
manner. If FIS determines that a particular employee, contractor, or
subcontractor is not conducting himself or herself in the manner required
pursuant to this Section 8.6, FIS shall notify FNF. FNF shall promptly
investigate the matter and take appropriate action.
8.7 Personnel Recruitment. Except as expressly permitted by other written
agreement(s) between FIS and FNF, FIS agrees, during the Term, not to
recruit and/or hire any personnel then employed by FNF. Except as
expressly permitted herein or by other written agreement(s) between FIS
and FNF, FNF agrees, during the Term, not to recruit
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and hire any personnel then employed by FIS. The provisions of this
Section 8.7 shall not apply to any solicitation conducted by, or any
hiring resulting from, general public advertising (including newspapers
and trade publications) or the self-directed efforts of a placement
professional.
ARTICLE 9. PROPRIETARY RIGHTS IN SOFTWARE AND SYSTEMS.
9.1 Identification of Software. The parties shall use reasonable efforts to
schedule, by or promptly following the Effective Date, all software
relating to the Services controlled by each of them at the Effective Date,
and shall, with respect to prospective changes, maintain such schedule
current throughout the Term as either develops, acquires or terminates
licenses for software relating to the Services. The parties shall,
promptly following the Effective Date and quarterly thereafter, update and
reconcile such schedules. Promptly following each quarterly
reconciliation, FIS shall deliver to FNF in electronic form, in a format
and on media in common use at the time, a copy of the source code for all
FNF Proprietary Software developed or modified by or on behalf of FIS
since or from the prior such delivery, clearly labeled in accordance with
industry practice but including, at least, product, version, date and the
date of the prior delivery of source code for such product. Prior to the
acquisition, development or use of any software by FIS in connection with
the Services, the parties shall agree in writing on the categorization of
such software as one of FNF Proprietary Software, FNF Third Party
Software, FIS Proprietary Software, or FIS Third Party Software (each as
defined herein below) and upon acquisition or development, shall add such
software to the appropriate software schedule.
9.2 FNF Software. FNF shall provide FIS the right to use at FNF's sole
expense, if any, and for use solely to provide the Services, software
owned by FNF at the Effective Date and used prior to the Effective Date to
support services which will be Services hereunder, or of which FNF
acquires ownership after the Effective Date and provides to FIS for use in
providing the Services, including pursuant to Section 3.14 above (the "FNF
Proprietary Software") and the FNF Third Party Software. All FNF
Proprietary Software will be and will remain the exclusive property of
FNF. FIS will have no rights or interests in the FNF Proprietary Software
hereunder except as described in this Section 9.2. FNF shall assist FIS in
obtaining access to such software and any related documentation in FNF's
possession on or after the Effective Date. "FNF Third Party Software"
shall mean the software which is provided by FNF and licensed in FNF's
name. FNF Proprietary Software and FNF Third Party Software is
collectively referred to as "FNF Software". All FNF Third Party Software
will be and will remain the exclusive property of such third party
licensors and FIS will have no rights or interests in the FNF Third Party
Software except as described in this Section 9.2. Any license fees or
other expenses reasonably incurred by FIS in obtaining the licenses for
the FNF Third Party Software shall be paid by FNF as a Pass-Through
Expense (as defined in Section 13.1). FIS shall not, without FNF's prior
consent, decompile or reverse engineer the FNF Software. As of the
Effective Date, FNF will cause FIS to be provided access to the FNF
Proprietary Software in the form in use by FNF as of the Effective Date.
Upon expiration of this Agreement or termination of this Agreement for any
reason, the rights granted to FIS in this Section 9.2 will immediately
revert to the entity which granted them and FIS shall, at
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no cost to FNF, other than the transfer fees described below (i) cease use
of all FNF Software, except to the extent as required in connection with
the Termination Assistance Services (as defined in Section 18.4), (ii)
deliver to FNF a current copy, if any, of all the FNF Software (including
any related source code in FIS's possession or control) in the form in use
as of the date of such expiration or termination of this Agreement, (iii)
destroy or erase all other copies of the FNF Software and documentation in
FIS's possession or the possession of FIS's Subcontractors unless
otherwise instructed by FNF, and (iv) if FIS has modified or enhanced any
FNF Software, FIS shall deliver to FNF all copies of such modifications or
enhancements. FIS will make reasonable efforts to give FNF prior notice of
any transfer fees which FNF must pay to affect the transfer of any FNF
Software to FNF. Upon termination of expiration of the Agreement, at the
request of FNF, FIS will make reasonable efforts to obtain for FNF (or
FNF's designee) a royalty free, perpetual, worldwide, nonexclusive license
to use the FNF Third Party Software. Any fees or other expenses reasonably
incurred by FIS in obtaining such licenses shall be paid by FNF as a
Pass-Through Expense (as defined in Section 13.9).
9.3 FIS Proprietary Software.
(a) All software and related documentation owned by FIS before the
Effective Date which is used in connection with the Services, or of
which FIS acquires ownership after the Effective Date and which is
used in connection with the Services (collectively, the "FIS
Proprietary Software"), will be and will remain the exclusive
property of FIS and FNF will have no rights or interests in the FIS
Proprietary Software except as described in this Section 9.3. FNF
agrees not to decompile or reverse engineer the FIS Proprietary
Software. FIS shall use the FIS Proprietary Software, and subject to
the Change Control Procedures, such other software as FIS shall
determine is necessary to provide the Services.
(b) Upon expiration or termination of this Agreement for any reason
other than material breach of FIS's intellectual property rights
under this Agreement by FNF or an FNF Entity, FIS shall deliver to
FNF a copy of such FIS Proprietary Software in the form being used
on the effective date of such expiration or termination, together
with related documentation and source code, certified by FIS as
substantially complete and up to date. FNF (or FNF's designee which
is not a competitor of FIS) shall receive a fully paid up, royalty
free, perpetual, worldwide, nonexclusive license subject to FIS's
standard licensing terms and conditions for the FIS Proprietary
Software along with any related FIS Developed Items (as defined in
Section 9.5) upon payment to FIS of a reasonable license fee. In no
event shall such license fee exceed the fair market value of such
software license or, if no such fair market value can be
established, the documented cost of FIS's development effort
therefor divided by the number of its clients then benefiting from
its use. FNF shall not be required to pay license fees to the extent
FNF has previously reimbursed FIS for third party license fees
whether as a Pass-Through Expense or otherwise.
(c) To the extent permitted by third party licenses pursuant to which
FIS licenses FIS Third Party Software, FIS hereby grants FNF a fully
paid up, royalty free,
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perpetual, world-wide, irrevocable, non-exclusive license to use,
copy, maintain, modify, enhance, perform, display, create derivative
work from, make and have made (collectively "Utilize"), sublicense
and permit any third party to Utilize the Ancillary FIS Proprietary
Software. To the extent third party licenses pursuant to which FIS
licenses FIS Third Party Software preclude or limit such a grant,
FIS shall promptly review with FNF, FNF's need for rights under each
such license and, at FIS's expense, shall obtain a written quote
from each relevant licensor for a commercially reasonable license to
FNF for the term, territory and rights deemed adequate in FNF's
discretion for FNF's purposes up to and including the terms recited
hereinabove. The underlying decision to enter into negotiations and
cost of any resulting license shall be solely an FNF responsibility.
FIS shall deliver to FNF a copy of the Ancillary FIS Proprietary
Software in the form being used upon the earlier of FNF's request
and the expiration or termination of this Agreement. The term
"Ancillary FIS Proprietary Software" shall mean collectively, the
FIS Proprietary Software identified as Ancillary FIS Proprietary
Software prior to creation or acquisition.
9.4 FIS Third Party Software. All software and related documentation licensed
or leased from a third party by FIS which will be used in connection with
the Services (collectively, "FIS Third Party Software" and, together with
the FIS Proprietary Software, the "FIS Software") will be and will remain
the exclusive property of such third party licensors and FNF will have no
rights or interests in the FIS Third Party Software except as described in
this Section 9.4. FNF shall not decompile or reverse engineer the FIS
Third Party Software. FIS will, during the Term (i) use such FIS Third
Party Software, and such other software as FIS shall determine is
necessary to provide the Services subject to the Change Control
Procedures, and (ii) provide that FNF acquires such rights to use the FIS
Third Party Software as are necessary in connection with the provision of
the Services. Any license fees or other expenses reasonably incurred by
FIS in providing the rights described in this Section 9.4 and related to
FIS Third Party Software as a Pass-Through Expense shall be paid by FNF as
a Pass-Through Expense. Except as otherwise provided herein, upon
expiration of this Agreement or termination of this Agreement for any
reason, FIS shall, (A) at the request of FNF, make reasonable efforts to
either transfer and assign to FNF (or FNF's designee) the licenses for the
FIS Third Party Software then being used in connection with the
performance of the Services or obtain for FNF or FNF's designee a
sublicense to use such FIS Third Party Software, to the extent FNF does
not already have such rights and (B) deliver to FNF a copy of such FIS
Third Party Software in the form then in use by FIS in connection with the
Services along with related documentation. FIS will make reasonable
efforts to give FNF prior notice of any transfer fees which FNF must pay
to affect the transfer of any FIS Third Party Software to FNF. FIS will
make reasonable efforts to obtain for FNF a royalty free, perpetual,
worldwide, nonexclusive license to use the FIS Third Party Software along
with related documentation. Any fees or other expenses reasonably incurred
by FIS in obtaining such licenses shall be paid by FNF as a Pass-Through
Expense. FIS Software and FNF Software are collectively referred to as
"Designated Software".
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9.5 Developed Software. Except as otherwise agreed by the parties pursuant to
the Change Control Procedures, (i) enhancements or modifications to the
FNF Software and related documentation shall be and remain the exclusive
property of FNF or its third party licensor, (ii) as between the parties,
enhancements or modifications to the FIS Software made by (or for) FIS for
FNF in connection with the provision of the Services and any related
documentation (the "FIS Developed Items") shall be and remain the
exclusive property of FIS, and (iii) enhancements or modifications to the
FIS Third Party Software shall be and remain the exclusive property of its
third party licensee to the extent provided for in the third party
license. Except with respect to the Ancillary FIS Proprietary Software,
the rights to which are described above in Section 9.3, the parties shall
identify all other software developed by FIS upon request of FNF and any
related documentation (the "Developed Software") in writing as FNF
Proprietary Software, FNF Third Party Software, FIS Proprietary Software,
or FIS Third Party Software prior to the time of development of such
Developed Software. FNF and FIS shall each be the sole and exclusive owner
of all trade secrets, patents, copyrights, and other proprietary rights
owned by each of them prior to entering into this Agreement.
9.6 Equipment. FIS shall provide computer, network equipment and maintenance
as specified in the applicable Base Services Agreement or Statement of
Work ("FIS Equipment"). FNF shall provide all other computer and network
equipment and equipment maintenance necessary in connection with the
Services and dedicated solely to the provision of Services to FNF
hereunder, including but not limited to personal computers, printers, and
related peripheral equipment and network equipment ("FNF Equipment"). FIS
Equipment and FNF Equipment are collectively referred to as "Equipment".
FNF shall pay the costs of all media and for the offsite storage of such
media in connection with and dedicated solely to the Services to be
provided to FNF hereunder. If Equipment once dedicated to Services is,
upon audit or otherwise, discovered to be or to have been used for other
purposes, FIS shall reimburse FNF for the pro-rated portion of such
Equipment used for other purposes.
9.7 Systems. "Systems" shall mean collectively the Designated Software and the
Equipment, which are used to provide the Services.
ARTICLE 10. REQUIRED CONSENTS
FIS shall obtain at FNF's expense, pursuant to Section 13.9, all consents or
approvals necessary to allow FIS, its agents and FIS Subcontractors to use the
Designated Software for the benefit of the FNF Entities and to provide the
Services to FNF and for the FNF Entities to receive the Services during the Term
and the Termination Assistance Period (collectively, the "Consents"), pursuant
to the Change Control Procedures. FIS shall promptly provide to FNF a copy of
all Consents.
ARTICLE 11. THIRD PARTY CONTRACT ADMINISTRATION AND MANAGEMENT
11.1 FIS Responsibilities. Throughout the Term, FIS will maintain a current
schedule of, manage and administer, the agreements for which Pass-Through
Expenses are paid and
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such other agreements to which the parties mutually agree in writing (the
"FIS Managed Agreements") and provide a copy of such schedule to FNF upon
request from time to time. FIS shall provide FNF with reasonable notice of
any renewal, termination or cancellation dates and fees in respect of such
FIS Managed Agreements. FIS shall notify FNF of all available warranties
and the expiration dates thereof. Within ninety (90) days prior to the
expiration of any such warranty, FIS shall supply FNF with notice of such
pending expiration and shall acquire, upon the written instruction of FNF,
any available extension of any such warranty. FIS shall maintain all
information required to make claims on warranties for the FIS Managed
Agreements and shall, with FNF's cooperation, timely file all warranty
claims. FNF may modify, terminate, or cancel any such FIS Managed
Agreement in its sole discretion. Any modification, termination, or
cancellation fees or charges imposed upon FNF in connection with any such
modification, termination or cancellation shall be paid by FNF except as
provided in the following sentence. FIS shall pay all fees and charges
caused by or resulting from FIS's negligence related to management of the
FIS Managed Agreements.
11.2 Third Party Invoices. FIS will (1) receive all invoices submitted by third
parties in connection with the FIS Managed Agreements (collectively, the
"FIS Managed Invoices"), (2) review and correct any errors in any such FIS
Managed Invoices in a timely manner, and (3) timely pay all amounts due
under such FIS Managed Invoices. Except as otherwise provided in this
Article 11, FNF shall pay to FIS, as a Pass-Through Expense, all amounts
paid by FIS for FIS Managed Agreements, including FIS Managed Invoices.
ARTICLE 12. DATA.
12.1 Title to Data. All data and information submitted to FIS by any FNF
Entity, or learned, solicited or compiled by or for FIS for the benefit of
FNF in the course of FIS's performance of Services ("FNF Data") is and
will remain, as between the parties, the property of FNF. FIS and its
employees, agents, and FIS Subcontractors and their employees and agents,
shall not (1) use the FNF Data for any purpose other than to provide the
Services, (2) disclose, assign, lease, transmit or otherwise provide the
FNF Data to third parties (other than to FIS Subcontractors), or (3) sell
or otherwise commercially exploit the FNF Data directly or indirectly, for
consideration of any nature. FIS and FIS Subcontractors shall not use
archival tapes or other archival media containing FNF Data other than for
archival purposes.
12.2 Return of Data. FIS shall upon (i) request by FNF at any time, or (ii) the
cessation of all Termination Assistance Services, promptly return to FNF,
in any FNF-specified form or format readily deliverable at the time, and
on any specified media in common use at the time, marked to indicate the
time and date of its currency, a copy of all of the FNF Data.
12.3 Partial Return of Data. Upon FNF request, FIS shall promptly provide to
FNF a copy of any such FNF Data as FNF may specify, in any FNF-specified
form or format readily deliverable at the time, and on any specified media
in common use at the time, marked to indicate the time and date of its
currency.
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12.4 Timing; Expense. In the event of a request for full or partial return of
FNF Data, FNF may specify a reasonable time frame for delivery and FIS
shall use its best efforts to comply with such request, but shall in any
event comply by the later of (i) the requested response date, and (ii)
five (5) days. FIS recognizes and acknowledges the importance to FNF and
its business of continual access to FNF Data and agrees that, in no event
(including pending Dispute or inter-party litigation), shall FIS withhold
FNF Data from FNF. FNF shall pay the reasonable, actual cost of complying
with such request, including without limitation any media on which the FNF
Data is stored for return and for the shipment thereof to FNF.
ARTICLE 13. INVOICES AND PAYMENTS
13.1 Fees. FNF will pay the fees set forth in Exhibit D, any Statements of
Work, Exhibits or Amendments (the "Fees") in consideration for FIS's due
provision of the related Services.
13.2 Credits. If, at the termination or expiration of the Agreement, FNF is due
any credits for the period prior to the termination or expiration of the
Agreement, such credits shall be offset against any Fees becoming due
thereafter or shall be paid to FNF within thirty (30) days after said
termination or expiration.
13.3 Taxes. All amounts mentioned in this Agreement are exclusive of tax. FNF
shall pay sales, use, value added, and goods and services taxes imposed by
any federal, state, or local governmental entity for products or services
provided under this Agreement, excluding taxes based on FIS's income and
property. FNF shall pay such tax(es) in addition to the sums due under
this Agreement. FIS shall, to the extent it is aware of taxes, itemize
them on a proper VAT, GST or other invoice submitted pursuant to this
Agreement. All property, employment and income taxes based on the assets,
employees and net income, respectively, of FIS except for Pass-Through
Expenses shall be FIS's sole responsibility. The parties shall cooperate
in good faith to minimize taxes to the extent legally permissible. Each
party shall provide and make available to the other party any resale
certificates, treaty certification and other exemption information
reasonably requested by the other party.
13.4 Proration. FIS will compile all periodic fees or charges under this
Agreement on a calendar month basis and will prorate such fees or charges
for any partial month based upon the ratio of days in the period hereunder
to the number of days in the month.
13.5 Invoicing and Payment. FIS will invoice FNF monthly, no later than the
fifteenth day of the month following that to which the invoice
corresponds. Each invoice will include sufficient detail directly or by
reference to specific dated Reports to enable FNF to understand the basis
for the calculation of Fees and charges then due including, as necessary,
documentation of reimbursable expenses, hours for time and materials
efforts, predicates for credit adjustments, etc. Upon FNF's request, FIS
shall provide additional supporting detail for any invoice. Any sum due to
FIS pursuant to this Agreement shall be due and payable thirty (30) days
after receipt by FNF of an accurate invoice from FIS. Any amount not
received or disputed by FNF by the date payment is due shall be subject to
interest on the balance overdue at a rate equal to the Prime Rate (as
defined in Section
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14.2) plus one percent from the due date, until paid, applied to the
outstanding balance from time to time.
13.6 Rights of Set Off. With respect to any undisputed amount that (1) should
be reimbursed to FNF or (2) is otherwise payable to FNF by FIS pursuant to
this Agreement, FNF may, if such amount has not been credited against
payments owed by FNF within a reasonable period of time after such amount
was due, upon notice to FIS, deduct the entire amount owed against the
charges otherwise payable or expenses owed to FIS under this Agreement
until such time as the entire amount determined to be owed to FNF has been
paid.
13.7 Refundable Items. In the event FIS receives, during the Term, any refund,
credit, or other rebate in respect of a Pass-Through Expense, FIS will
promptly notify FNF of such refund, credit, or rebate, and shall promptly
pay to the appropriate FNF Entity the full amount of such refund, credit,
or rebate, in no event later than thirty (30) days following receipt of
such refund.
13.8 Inflation Adjustment.
(a) The Fees (exclusive of Pass-Through Expenses) shall be subject to
adjustment as set forth in paragraphs (a) and (b) of this Section
13.8. The Fees shall not be adjusted pursuant to this Section 13.8
with effect prior to January 1, 2005. If the Bureau of Labor
Statistics Consumer Price Index-Urban (1967=100) as published by the
Bureau of Labor Statistics of the Department of Labor (the "CPIU")
for 2004 or thereafter (the "Current CPI Index") shall increase from
the CPIU applicable for the twelve (12) months immediately prior to
the notice of increase (the "Base CPI Index"), then FIS may, no more
often than once in any calendar year, upon no less than thirty (30)
days prior written notice (but with initial effect on the first of
the month next succeeding the 30th day following such notice),
increase the Fees on a prospective basis. Such increase shall not
exceed, as a percentage, one half (1/2) of the percentage by which
the Current CPI Index increased from the Base CPI Index. The Fees
(exclusive of Pass-Through Expenses) for any succeeding year shall
be equal to the Fee as so increased or as further adjusted in
succeeding years in accordance with this Section 13.8. Upon such
election, FIS will provide to FNF a recalculation of the Fees in
writing.
(b) If the Bureau of Labor Statistics stops publishing the CPIU or
substantially changes the content of the CPIU, the parties shall
substitute another comparable measure published by a mutually
agreeable source. If such change is merely to redefine the base year
for the CPIU from 1967 to another year, the parties shall continue
to use the CPIU but shall, if necessary, convert either the Base CPI
Index or the Current CPI Index to the same basis as the other by
multiplying such index by the appropriate conversion factor.
13.9 Pass-Through Expenses. FNF shall reimburse FIS, at cost, for the
pass-through expenses mutually agreed by FNF and FIS in writing and
required by FIS in providing the Services (the "Pass-Through Expenses"),
to the extent such Pass-Through Expenses are actually
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incurred by FIS for resources and/or activities and to the extent actually
supporting Services for FNF. FIS will promptly provide FNF with the
original third-party invoice for such expense, together with a statement
that FIS has reviewed the invoiced charges and made a determination of
which charges are proper and valid and will be paid by FNF. Otherwise, FIS
will act as payment agent for FNF and will pay all third-party charges
comprising Pass-Through Expenses. FIS will pay the amounts due and will
invoice FNF for such charges as part of the monthly billing. FIS will use
commercially reasonable efforts to minimize the amount of Pass-Through
Expenses. With respect to services or materials paid for on a Pass-Through
Expense basis, FNF reserves the right to: (i) obtain such services or
materials directly from a third party; (ii) designate the third party
source for such services or materials; (iii) designate the particular
services or materials (such as equipment make and model) FIS will obtain;
(iv) require FIS to identify and consider multiple sources for such
services or materials and evaluate the responses from such sources; and
(v) review and approve a Pass-Through Expense for such services or
materials before entering into a contract for such services or materials.
ARTICLE 14. AUDITS
14.1 Processing. Upon at least ten (10) days notice from FNF, FIS shall provide
to auditors and inspectors designated by FNF in its notice, and upon
request, regardless of advance notice, FIS shall provide (a) to FNF (or
auditors and inspectors on behalf of FNF) to the extent FNF is required to
do so for compliance with law or regulations or (b) to FNF regulators,
reasonable access (i) during normal business days and hours (except as may
be necessary to perform security audits) to the FIS Service Locations and
(ii) at any time at any FNF location for the purpose of performing, at
FNF's expense, audits or inspections of the business of FNF as supported
by FIS. FIS shall provide such auditors and inspectors any assistance that
they may reasonably require. If any audit by an auditor designated by FNF
or a regulatory authority having jurisdiction over FNF or FIS results in
FIS being notified that it is not in compliance with any generally
accepted accounting principle or other audit requirement relating to the
Services, FIS and FNF shall, within the period of time specified by such
auditor or regulatory authority, work in good faith at FIS's then-standard
rates to comply with such auditor or regulatory authority. If any
non-compliance is due to the non-performance of an obligation of FIS
described in any Base Services Agreement, Statement of Work, Exhibit or
Amendment, FIS shall correct such non-compliance at no cost to FNF.
14.2 Fee Audit. FNF may, with ten (10) days prior written notice and at its own
expense, engage a third party mutually agreed to by the parties (a "Fee
Auditor") to perform a review and audit of records and reports relating
only to volumes of resources, Pass-Through Expenses and travel and living
expenses billed to FNF by FIS pursuant to this Agreement (a "Fee Audit").
FIS agrees to cooperate fully with the Fee Auditor in preparation of the
Fee Audit Report (as defined below) and deliver any requested information
to the Fee Auditor which FIS would otherwise be required to furnish to FNF
pursuant to Section 14.1 hereof at FNF's sole expense. The Fee Auditor
shall prepare and submit to FNF a written report of the results of the Fee
Audit (a "Fee Audit Report"). FNF will provide FIS with a copy of the Fee
Audit Report within five (5) business days of FNF's receipt thereof. In
the event that the Fee Audit Report reveals that any Fees
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have been overbilled, FIS shall (1) reimburse FNF for such Fees with
interest from the date upon which the Fee was first paid by FNF (the "Fee
Payment Date") until the date on which FIS makes such reimbursement, at
the prime rate as published in the table money rates in the Wall Street
Journal on the Fee Payment Date (or the prior date on which the Wall
Street Journal was published if not published on the Fee Payment Date),
("Prime Rate") plus one percent and (2) if FIS is not working in good
faith to resolve billing issues identified prior to the audit and, if the
Fees exceed by more than 5% the amount which the Fee Auditor determines to
be the proper Fee amount, pay any fees, costs or other expenses owed to
the Fee Auditor for performing the Fee Audit. In no event shall FIS's
liability for the cost of the Fee Audit exceed reasonable and customary
charges for such audits.
ARTICLE 15. FORCE MAJEURE; TIME OF PERFORMANCE
15.1 Force Majeure. Neither party shall be held liable for any delay or failure
in performance of all or a portion of the Services or Additional Services
or of any part of this Agreement from any cause beyond its reasonable
control which, with the observation of its duties herein and reasonable
care, could not have been avoided or promptly remediated (including, but
not limited to, acts of God, acts of civil or military authority,
government regulations, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents and
floods, each a "Force Majeure Event"). Notwithstanding anything in this
Agreement to the contrary, none of (a) a failure of FIS or FNF to satisfy
FIS's or FNF's respective obligations related to Year 2000 compliance as
specified in Section 17.1 (to the extent such failure is not otherwise due
to a Force Majeure Event) or (b) the failure of the DRP to meet the
requirements of Schedule C-8, if such failure results from FIS's
negligence in procuring or implementing the DRP, shall constitute Force
Majeure Events. Upon the occurrence of a condition described in this
Section 15.1, the party whose performance is prevented or delayed shall
give immediate written notice to the other party describing the affected
performance, ("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 the DRP, if it has not already been
implemented. 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. FNF may immediately cease paying for that part of the
Affected Performance which FIS is unable to perform. In the event the
delay caused by the Force Majeure Event lasts for a period of more than
fifteen (15) days, the parties shall negotiate an equitable modification
to this Agreement with respect to the Affected Performance. If the parties
are unable to agree upon an equitable modification 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. If the Force Majeure
Event for such Affected Performance is continuing upon the expiration of
such thirty (30) day notice period the portion of this Agreement relating
to the Affected Performance shall automatically terminate. The remaining
portion of the Agreement that does not involve the Affected Performance
shall continue in full force and effect. In such event FIS shall
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be entitled to be paid for that portion of the Affected Performance for
which it has completed or in the process of completing through the
termination date.
15.2 Time of Performance and Increased Costs. FIS's time of performance with
respect to Services performed under this Agreement shall be extended, and
its obligations under Exhibit H shall be suspended, if and to the extent
reasonably necessary, in the event that (a) FNF fails to submit data or
materials in the prescribed form agreed to by the parties or in accordance
with the requirements identified as the responsibility of FNF in this
Agreement, (b) FNF fails to perform on a timely basis or provide adequate
resources to perform the tasks, functions or other responsibilities of FNF
designated as the responsibility of FNF in this Agreement, (c) FNF or any
governmental agency authorized to regulate or supervise FNF makes any
special request which extends FIS's normal performance schedule, or (d)
any FNF Software does not perform in accordance with its documentation or
is not Year 2000 Compliant (and, in each case, the same is necessary for
FIS's performance hereunder), or FNF or FIS (at FNF's direction) changes
or modifies the FNF Software which change or modification materially
affects FIS's performance of the Services (each of (a), (b), (c) and (d)
an "FNF Interruption Event"). FIS shall give FNF immediate notice of an
FNF Interruption Event. If either an FNF Interruption Event occurs and FIS
is not prevented thereby from performing any Services, but the occurrence
of such FNF Interruption results in (A) an inability of FIS to perform any
or all of the Services at the Service Levels or (B) an increased cost to
FIS for providing the affected Services, FNF may elect to either (i)
suspend FIS's performance of such Service until such time as the FNF
Interruption Event no longer exists, and continue to pay for the Services
pursuant to Section 13 of this Agreement, or (ii) elect to receive the
Services from FIS in which event FIS shall be relieved of Service Levels
with respect to the affected Services for so long as the FNF Interruption
Event continues. If an FNF Interruption prevents FIS from performing any
Services, FNF shall continue to pay FIS for the Services pursuant to
Section 13 of this Agreement.
15.3 Sole and Exclusive. FIS's sole and exclusive remedy for FNF's failure to
perform its obligations described in this Agreement (including Section
17.1(d)(1), and for the occurrence of an FNF Interruption Event shall be
limited as provided in this Section 15.3. In no event shall Section 15.2
affect FIS's right to claim (i) Fees due under this Agreement for Services
actually performed and (ii) damages to FIS for the termination of this
Agreement in whole, or in part, by FNF (which termination FIS establishes
is a breach of the Agreement) based on the lesser of (a) the Termination
Fee (described in Section 18.5) plus the Fees from the date of termination
through the notice period described in Section 18.1 and (b) Fees based on
the volumes of resources multiplied by the number of months from the date
of termination through the end of the Term. FIS's failure to timely or
duly perform Services hereunder shall not be a breach hereof to the extent
resulting, in whole or in part, from an FNF Interruption Event.
ARTICLE 16. CONFIDENTIALITY.
16.1 Confidential Information. Each party shall use at least the same standard
of care in the protection of Confidential Information of the other party
as it uses to protect its own confidential or proprietary information
(provided that such Confidential Information shall
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be protected in at least a reasonable manner). For purposes of this
Agreement, "Confidential Information" includes (1) all confidential or
proprietary information and documentation of either party, including the
terms of this Agreement, including with respect to FNF, all FNF Software,
FNF Data, all reports, exhibits and other documentation prepared by any
FNF Entity in connection with any bid or proposal process and with respect
to FIS, the FIS Software, any financial information, and reports, exhibits
and other documentation prepared by FIS in connection with any bid or
proposal process. Each party shall use the Confidential Information of the
other party only in connection with the purposes of this Agreement
(including administration and dispute resolution), and shall make such
Confidential Information available only to its employees, subcontractors,
or agents having a "need to know" with respect to such purpose. Each party
shall advise its respective employees, subcontractors, and agents of such
party's obligations under this Agreement. Except as otherwise required by
the terms of this Agreement (including Article 18) or applicable law or
national stock exchange rule, in the event of the expiration of this
Agreement or termination of this Agreement for any reason all Confidential
Information of a party disclosed to, and all copies thereof made by, the
other party shall be returned to the disclosing party or, at the
disclosing party's option, erased or destroyed. The recipient of the
Confidential Information shall provide to the disclosing party
certificates evidencing such destruction. The obligations in this Section
16.1 will not restrict disclosure by a party pursuant to applicable law,
or by order or request of any court or government agency; provided that,
prior to such disclosure the receiving party shall (i) immediately give
notice to the disclosing party and (ii) cooperate with the disclosing
party in challenging the right to such access and (iii) only provide such
information as is required by law, such order or a final, non-appealable
ruling of a court of proper jurisdiction. Confidential Information of a
party will not be afforded the protection of this Agreement if such
Confidential Information was (A) developed by the other party
independently as shown by its written business records regularly kept, (B)
rightfully obtained by the other party without restriction from a third
party, (C) publicly available other than through the fault or negligence
of the other party, or (D) released by the disclosing party without
restriction to anyone.
16.2 Work Product Privilege. FNF represents and FIS acknowledges that, in the
course of providing Services pursuant to this Agreement, FIS may have
access to (i) documents, data, databases or communications that are
subject to attorney client privilege and/or (ii) privileged work product
prepared by or on behalf of the FNF Entities in anticipation of litigation
with third parties (collectively, the "Privileged Work Product") and that
FNF represents and FIS understands that all Privileged Work Product is
protected from disclosure by Rule 26 of the Federal Rules of Civil
Procedure and the equivalent rules and regulations under the law chosen to
govern the construction of this Agreement. FNF represents and FIS
understands the importance of maintaining the strict confidentiality of
the Privileged Work Product to protect the attorney client privilege, work
product doctrine and other privileges and rights associated with such
Privileged Work Product pursuant to such Rule 26 and the equivalent rules
and regulations under the law chosen to govern the construction of this
Agreement. After FIS is notified or otherwise becomes aware that
documents, data, database, or communications are Privileged Work Product,
only FIS personnel for whom such access is necessary for the purposes of
providing
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Services to FNF as provided in this Agreement shall have access to such
Privileged Work Product. Should FIS ever be notified of any judicial or
other proceeding seeking to obtain access to Privileged Work Product, FIS
shall, (1) immediately give notice to FNF and (2) cooperate with FNF in
challenging the right to such access and (3) only provide such information
as is required by a final, non-appealable ruling of a court of proper
jurisdiction. FNF shall pay the cost of any additional labor expense
beyond that required by this Agreement which is incurred by FIS in
complying with the immediately preceding sentence. FNF has the right and
duty to represent FIS in such resistance or to select and compensate
counsel to so represent FIS or to reimburse FIS for reasonable attorneys'
fees and expenses as such fees and expenses are incurred in resisting such
access. If FIS is ultimately required, pursuant to an order of a court of
competent jurisdiction, to produce documents, disclose data, or otherwise
act in contravention of the confidentially obligations imposed in this
Agreement, or otherwise with respect to maintaining the confidentiality,
proprietary nature, and secrecy of Privileged Work Product, FIS is not
liable for breach of such obligation to the extent such liability does not
result from failure of FIS to abide by the terms of this Agreement. All
Privileged Work Product is the property of FNF and will be deemed
Confidential Information, except as specifically authorized in this
Agreement or as required by law.
16.3 Injunctive Relief. Each party acknowledges and agrees that, in the event
of a breach or threatened breach of any provision of this Article 16, such
party shall have no adequate remedy in damages and notwithstanding the
dispute resolution clause hereinabove, is entitled to seek an injunction
to prevent such breach or threatened breach; provided, however, that no
specification of a particular legal or equitable remedy is to be construed
as a waiver, prohibition, or limitation of any legal or equitable remedies
in the event of a breach hereof.
16.4 Unauthorized Acts. Each party shall: (1) notify the other party promptly
of any unauthorized possession, use, or knowledge of any Confidential
Information by any person which shall become known to it, any attempt by
any person to gain possession of Confidential Information without
authorization or any attempt to use or acquire knowledge of any
Confidential Information without authorization (collectively,
"Unauthorized Access"), (2) promptly furnish to the other party full
details of the Unauthorized Access and use reasonable efforts to assist
the other party in investigating or preventing the reoccurrence of any
Unauthorized Access, (3) cooperate with the other party in any litigation
and investigation against third parties deemed necessary by such party to
protect its proprietary rights, and (4) promptly prevent a reoccurrence of
any such Unauthorized Access.
16.5 Publicity. Except as required by law or national stock exchange rule,
neither party shall issue any press release, distribute any advertising,
or make any public announcement or disclosure (a) identifying the other
party by name, trademark or otherwise, or (b) concerning this Agreement
without the other party's prior written consent. Notwithstanding the
foregoing sentence, in the event either party is required to issue a press
release relating to this Agreement or any of the transactions contemplated
by this Agreement, or by the laws or regulations of any governmental
authority, agency or self-regulatory agency, such party shall (i) give
notice and a copy of the proposed press
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release to the other party as far in advance as reasonably possible, but
in any event not less than five (5) days prior to publication of such
press release and (ii) make any changes to such press release reasonably
requested by the other party. In addition, FIS may (1) communicate the
existence of the business relationship contemplated by the terms of this
Agreement internally within FNF's organization and (2) orally and in
writing communicate FNF's identity as a reference with potential and
existing customers.
16.6 Data Privacy.
16.6.1 Where, in connection with this Agreement, FIS processes or stores
information about a living individual that is held in automatically
processable form (for example in a computerized database) or in a
structured manual filing system ("personal data"), on behalf of any FNF
Entities or their clients, then FIS shall:
(i) process those personal data only on the written instructions
of an FNF Entity (or, with an FNF Entity's prior written
approval, the FNF Entity's client);
(ii) implement appropriate administrative, physical and technical
measures to protect those personal data against accidental or
unlawful destruction or accidental loss, alternation,
unauthorized disclosure or access, in particular where the
processing involves the transmission of data over a network
for which FIS has responsibility, and against all other
unlawful forms of processing. Specifically, FIS will provide,
without incremental charge, an annual SAS 70 (Type II) audit
of its operations at each FIS Technology Center, inclusive of
network management from such locations, and at each FIS
Service Location to which such processing, in whole or part,
may be moved, prepared by a reputable, independent accounting
firm. FIS shall provide to FNF a copy of the related audit
report promptly after receipt by FIS of such audit report, and
in any event within thirty days of FIS's receipt. FIS shall
also provide FNF with a copy of the management response that
addresses security and procedural changes suggested in any
audit report, if any changes are suggested. Should an audit
reveal unresolved deficiencies (which FIS agrees are
deficiencies) without a management plan to correct them, FNF
may require FIS to promptly provide a management response to
cure the deficiency and to provide documentation, as
reasonably requested, to demonstrate such cure to FNF's
reasonable satisfaction. FIS shall bear the costs of the audit
and any required remedial action. FIS's security measures
shall be in accordance with generally accepted industry
standards and applicable Regulations and the Fidelity
Information Security Policy in accordance with FIS'
obligations pursuant to Section 3.13. FNF may review FIS's
then-current security procedures in accordance with the
procedures set forth in Section 14 of the Agreement. Should a
review of FIS's security procedures and/or policies reveal
issues with FIS's security procedures and/or policies that
constitute deficiencies as assessed against applicable
Regulations, the Fidelity Information Security Policy and
generally accepted industry
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standards, FNF may require FIS to promptly provide a plan to
cure the deficiency and to provide documentation, as
reasonably requested, to demonstrate such cure to FNF's
reasonable satisfaction. In addition to the security measures
previously implemented by FIS as described in FIS's
then-current security procedures, FIS agrees to adhere to such
additional security measures with respect to FNF's personal
data as may reasonably be imposed by FNF in accordance with
Section 3.13. FNF will reimburse FIS for its actual costs
incurred if adherence to additional security standards
requested or required by FNF increases FIS's costs of
operation. FIS shall promptly notify FNF of: (i) any known
material unauthorized possession or use, or attempt thereof,
of the data processing files or other personal data; (ii) the
effect of such, and (iii) the corrective action taken in
response thereto;
(iii) not disclose those personal data to any person except as
required or permitted by this Agreement (including without
limitation any confidentiality restrictions contained in it)
or pursuant to an FNF Entity's written consent;
(iv) provide full cooperation and assistance to the FNF Entities in
allowing data subjects (as defined in Directive 95/46/EC of
the Parliament and of the Council of the European Union of 24
October 1995) to have access to those data and/or to ensure
that those data are deleted or corrected if so required by any
FNF Entity; and
(v) not process those personal data except to the extent
reasonably necessary to the performance of the Agreement.
Except as otherwise agreed in writing, all personal data relating to the
FNF Entities or their clients, or any employees or representatives of the
FNF Entities, or otherwise acquired by FIS or FIS Subcontractors as a
result of this Agreement shall be processed on behalf of the FNF
Entities, and FIS shall have no right to process or permit a third party
to process such data other than in performance of FIS's obligations under
this Agreement.
16.6.2 FNF may instruct FIS, where FIS processes personal data on behalf of FNF
Entities, to take such steps in the processing of those personal data as
are reasonably necessary for the performance of this Agreement.
16.6.3 If FIS or any FIS Subcontractors transfers any of the personal data that
were provided to FIS by FNF's U.S. Entity to another jurisdiction for
processing outside the United States, FIS shall ensure that the transfer,
and FIS's subsequent processing of personal data in the second
jurisdiction, do not put the FNF Entities in breach of relevant data
protection laws in the jurisdiction to which the personal data is
transferred.
16.6.4 FNF Entities may, in connection with this Agreement, collect personal
data in relation to FIS and FIS's employees, directors and other officers
involved in providing Services hereunder. Such data may be collected from
FIS, its employees, its directors, its officers, or from other (for
example, published) sources; and some limited personal data may be
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collected indirectly at FNF's (or FNF's Entities') locations from
monitoring devices or by other means (e.g., telephone logs, closed circuit
TV and door entry systems). Nothing in this Section 16.6.4 obligates FIS
or FIS's employees, directors or other officers to provide personal data
requested by FNF. The FNF Entities may use and disclose any such data
disclosed by FIS solely for purposes connected with this Agreement and for
the relevant purposes specified in the data privacy policy of the FNF
Entity (a copy of which is available on request.) In particular, FNF may
for these purposes transfer such data to any country in which FNF's
worldwide organization does business (including to other FNF Entities) so
long as FNF does so in compliance with the relevant data protection laws.
FIS agrees to such transfer in its own right and on behalf (with the
authority) of its employees, directors and other officers. FNF will
maintain the same level of protection for personal data collected from FIS
(and FIS's employees, directors and officers, as appropriate) as FNF
maintains with its own personal data, and will implement appropriate
administrative, physical and technical measures to protect the personal
data collected from FIS and FIS's employees, directors and other officers
against accidental or unlawful destruction or accidental loss,
alternation, unauthorized disclosure or access.
ARTICLE 17. REPRESENTATIONS AND WARRANTIES
17.1 Representations and Warranties.
(a) FIS represents that:
(1) It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Arkansas.
(2) It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(3) With respect to the subject matter of this Agreement, it is
duly licensed, authorized or qualified to do business and is
in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership
or leasing of its assets or the transaction of business of the
character transacted by it, except where the failure to be so
licensed, authorized or qualified would not have a material
adverse effect on FIS's ability to fulfill its obligations
under this Agreement.
(4) The execution, delivery and performance of this Agreement (a)
has been duly authorized by FIS and (b) will not conflict with
or result in a violation of any of the terms, conditions or
provisions of any note, bond, mortgage, indenture or deed of
trust or any license, lease agreement or other instrument or
obligation to which FIS is a party or by which FIS or any of
the assets is bound or affected.
(5) It is in compliance with all applicable Federal, state, local,
international and foreign laws and regulations applicable to
it in connection with its obligations under this Agreement.
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(6) There is no outstanding litigation, arbitrated matter or other
dispute to which FIS is a party which, if decided unfavorably
to FIS, would reasonably be expected to have a potential or
actual material adverse effect on FIS's or FNF's ability or on
FIS's cost to fulfill its obligations under this Agreement.
(7) None of the FIS Service Locations is in violation of
applicable environmental laws.
(8) FIS has no knowledge after due inquiry that the provision of
the FIS Software infringes upon the proprietary or contractual
rights of any third party.
(9) The execution, delivery and performance of this Agreement will
not cause a breach of any commitments by FIS to third parties.
(10) FIS does not have any commitments to third parties that would
cause a breach of FIS's obligations under this Agreement.
(11) No approval, authorization, or consent of any governmental or
regulatory authority is required to be obtained or made by FIS
in order for it to enter into and perform its obligations
under this Agreement.
(12) FIS has the right to use the FIS Software to provide the
Services and FIS is not aware of any claims of any party which
could reasonably threaten such use.
(b) Covenants and Warranties of FIS. FIS covenants and warrants that:
(1) In connection with providing the Services, FIS shall comply
with all applicable Federal, state and local laws and
regulations and shall obtain all applicable permits and
licenses related to the FIS Service Locations.
(2) FIS shall maintain and keep the Systems and any other software
or Equipment used, exclusively or otherwise, in the provision
of the Services, in such condition and state of repair
consistent with generally accepted industry practices.
(3) Any FIS Proprietary Software will not contain any undisclosed
back door, spyware, time bomb, drop dead device, clock, timer,
copy protection feature, replication device, CPU serial number
reference or other software routine designed to disable, lock
or erase or otherwise interfere with normal use of a computer
program, data, or any other files on the user's systems,
automatically with the passage of time or under the positive
control of a person other than a licensee of the software
(collectively, "Self-Help Code") and FIS will make reasonable
efforts to prevent the introduction of any virus, Trojan
horse, worm contaminants, or other software routines or
hardware components designed to permit
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unauthorized access to disable, erase, or otherwise harm
software, hardware or data, or to perform any other similar
actions (collectively, "Unauthorized Code").
(4) FIS warrants that the Services and the Additional Services
will be performed in a professional and workmanlike manner in
accordance with the care and skill ordinarily used by other
members of the information processing industry practicing
under similar conditions for similar customers at the same
time, and in no event at a level less than provided by FIS to
any other of its similarly situated customers, internal or
external, until such time as the baseline has been completed
and the Service Levels have been mutually agreed upon.
(5) Year 2000 Compliance.
(a) Definition. For purposes of this Section, the term "Year
2000 Compliant" means that the software, hardware, or
equipment, as applicable, manages and manipulates data
involving dates, including single-century, cross-century
and leap year formulas and date values without resulting
in the generation of incorrect or invalid values
involving such dates or causing an abnormal ending.
(b) Representations Regarding the FIS Proprietary Software.
The FIS Proprietary Software shall be Year 2000
Compliant; provided, however, that FIS shall not be
responsible or liable for any failure of the FIS
Proprietary Software to be Year 2000 compliant or for
any improper operation or malfunction of the FIS
Proprietary Software under any of the following
conditions:
(i) The failure of the FIS Proprietary Software to be
Year 2000 Compliant is the result, in whole or in
part, of either the interaction between the FIS
Proprietary Software and any other software or
systems which are not Year 2000 Compliant or the
interface between the FIS Proprietary Software and
any other software or systems which may pass data
into or accept data from the FIS Proprietary
Software; or
(ii) The failure of the FIS Proprietary Software is the
result, in whole or in part, of any hardware,
operating systems, or equipment which is either
provided by FNF or for which, under the terms of
this Agreement, FIS is not responsible; or
(iii) The failure is the result of modifications made to
the FIS Proprietary Software either by FNF or by a
third party at FNF's request.
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In the event that the FIS Proprietary Software is not Year 2000 Compliant,
subject to the limitations set forth above, FNF's sole and exclusive remedy
shall be that FIS shall correct and repair the FIS Proprietary Software to make
it Year 2000 Compliant.
(c) Warranty With Respect to Services. FNF acknowledges that
FIS shall have no responsibility for FNF's Year 2000
compliance or readiness and that FIS has made no
representations that Services provided hereunder will
make FNF Year 2000 Compliant or ready.
(d) Warranty with Respect to Environment. FNF acknowledges
that FIS is relying on the representations made by its
third-party suppliers regarding the Year 2000 compliance
or readiness of the FIS Third-Party Software, the FNF
Third Party Software, operating systems, machines,
hardware environment and equipment and that it is those
third-party suppliers responsibility to provide for the
Year 2000 compliance of the products they manufacture or
provide. Upon request by FNF, FIS shall provide FNF with
the terms and conditions of any applicable
manufacturers' warranties for such products and shall
assign to FNF, without additional charge, such
warranties as the manufacturers may extend to FIS for
the benefit of FNF. In the event that any part of an FIS
Service Location supporting Services is not Year 2000
compliant, FIS will use its reasonable and good faith
efforts to cause the third-party supplier of the
non-compliant FIS Third-Party Software, the FNF Third
Party Software, operating systems, machines, hardware
environment or equipment to make such FIS Third-Party
Software, the FNF Third Party Software, operating
systems, machines, hardware environment or Equipment
Year 2000 Compliant and will replace such non-compliant
FIS Third Party Software, FNF Third Party Software,
operating systems, machines, hardware environment or
equipment with comparable products if FIS, in its
reasonable discretion, deems replacement is necessary.
FIS makes no representations or warranties of any kind,
express, implied or statutory, as to the Year 2000
compliance or readiness of such FIS Third-Party
Software, the FNF Third Party Software, operating
systems, machines, hardware environment and/or equipment
or the sufficiency thereof.
(e) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
SECTION, FIS MAKES NO OTHER WARRANTIES WITH RESPECT TO
THE YEAR 2000 COMPLIANCE OF ANY SOFTWARE, MACHINES,
HARDWARE, EQUIPMENT OR SERVICES PROVIDED BY FIS
HEREUNDER AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO YEAR 2000 COMPLIANCE,
INCLUDING ANY WARRANTY OF MERCHANTABILITY
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OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY
EXPRESSLY DISCLAIMED AND EXCLUDED.
(c) Representations of FNF. FNF represents that:
(1) It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(2) It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(3) With respect to the subject matter of this Agreement, it is
duly licensed, authorized or qualified to do business and is
in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership
or leasing of its assets or the transaction of business of the
character transacted by it, except where the failure to be so
licensed, authorized or qualified would not have a material
adverse effect on FNF's ability to fulfill its obligations
under this Agreement.
(4) The execution, delivery and performance of this Agreement (a)
has been duly authorized by FNF and (b) will not conflict with
or result in a violation of any of the terms, conditions or
provisions of any note, bond, mortgage, indenture or deed of
trust or any license, lease agreement or other instrument or
obligation to which FNF is a party or by which FNF or any of
the assets is bound or affected.
(5) It is in compliance with all applicable Federal, state, local,
international and foreign laws and regulations applicable to
FNF in connection with its obligations under this Agreement.
(6) There is no outstanding litigation, arbitrated matter or other
dispute to which FNF is a party which, if decided unfavorably
to FNF, would reasonably be expected to have a potential or
actual material adverse effect on FIS's or FNF's ability to
fulfill its obligations under this Agreement.
(d) Covenants of FNF:
(1) FNF responsibilities shall be performed in a good and
workmanlike manner in accordance with the care and skill
ordinarily used by other members of the title insurance
industry practicing under similar conditions at the same time.
(e) FIS's sole and exclusive remedy for FNF's breach of Section 17.1
shall be as set forth in Sections 15.2 and 15.3.
17.2 Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER FNF NOR FIS
MAKES ANY WARRANTIES WITH RESPECT TO THE AGREEMENT AND
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EACH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
SPECIFIC PURPOSE.
ARTICLE 18. TERMINATION
18.1 Termination for Convenience. Termination of this Agreement, in whole or in
part, by FNF for convenience and associated partial termination amounts,
termination fees and minimum purchase commitments for the Services are
addressed in Exhibit I.
18.2 Termination.
(a) If FIS fails to perform any of its material obligations under this
Agreement and does not cures such failure within thirty (30) days of
receipt (or, if a cure could not reasonably be completed in thirty
days, but FIS is diligently pursuing a cure, then within sixty (60)
days) ("Default Cure Period") of a notice of default ("Default
Notice") from FNF, then FNF may terminate the Agreement (or any
relevant Specific Core Service, Statement of Work, Base Services
Agreement, or reasonably separable Service which is separately
priced ("Service Component")) effective on the last day of the
Default Cure Period. FNF shall not be required to provide a Default
Cure Notice with respect to the occurrences described in Section
18.2(b) and (c). If FNF fails to timely pay undisputed amounts due
hereunder or otherwise breaches its duty of confidentiality in a
manner which has or may have a material adverse impact on FIS and
does not cure such failure within thirty (30) days of receipt (or,
if a cure could not reasonably be completed in thirty days, but FNF
is diligently pursuing a cure, then within sixty (60) days) of a
Default Notice from the FIS, then FIS may terminate the Agreement
(or at FIS' discretion any relevant Service Component) effective the
last day of the Default Cure Period.
(b) In the event that either party breaches the provisions of Section
16.1, 16.2, and/or 16.6 the non-breaching party may exercise any
termination right immediately without the provision of any
opportunity to cure. A party exercising termination rights pursuant
to this Section 18.2(b) shall give the other party notice of such
termination by telephone (to be confirmed in writing within
twenty-four (24) hours). The right to terminate pursuant to this
Section 18.2(b) shall not limit or obviate in any way any other
remedies to which a terminating party may be entitled pursuant to
this Agreement, by law, at equity or otherwise.
(c) FNF may terminate this Agreement or any Service Component(s) without
liability to either party, other than Fees for Services, Additional
Services or Termination Assistance Services performed, if FIS has a
Change of Control not approved by FNF. A "Change of Control" shall
mean: (i) the consolidation or merger of FIS with or into a Direct
Competitor of FNF or (ii) the sale of all or substantially all of
the assets of FIS to a Direct Competitor of FNF.
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18.3 Termination for Insolvency.
(a) In the event that either party:
(1) shall admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due; or
(2) shall (i) 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, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code, (iv) 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, (v) 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 (vi)
take any corporate, partnership or other action for the
purpose of effecting any of the foregoing;
then the other party may, by giving notice thereof to such party,
exercise any termination right, and such termination shall become
effective as of the date specified in such termination notice.
(b) In the event that:
(1) a proceeding or case shall be commenced, without the
application or consent of a party, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of such
party or of all or any substantial part of its property or
assets or (iii) similar relief in respect of such party under
any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a
period of sixty (60) days or more days; or
(2) an order for relief against such party shall be entered in an
involuntary case under the Bankruptcy Code;
then the other party may, by giving notice thereof to such party,
exercise any termination right, and such termination shall become
effective as of the date specified in such termination notice.
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18.4 Termination Assistance. Upon the termination or expiration of this
Agreement, or any Service Component, for any reason, FIS will provide FNF,
at FNF's request, the transition services reasonably necessary for FNF to
effect an orderly transition for the performance by or on behalf of FNF of
the Services so terminated. Further, FIS will provide, at FNF's request,
all staff, services and assistance reasonably required by FNF for such
transition ("Termination Assistance Services"). All Termination Assistance
Services shall be at FIS's then-standard rates for services of the type to
which such Fees apply, whichever is applicable. In the event FIS
terminates the Agreement for material breach by FNF, FNF shall prepay to
FIS all anticipated fees and expenses related to the Termination
Assistance Services prior to the commencement of Termination Assistance
Services. FIS will comply with FNF's directions to accomplish the orderly
transition and migration of the Services to FNF, or any entity designated
by FNF, from FIS. FIS will continue to provide Services in connection with
Termination Assistance Services for a period of up to six (6) months after
termination or expiration of the Agreement, or any Service Component, but
only if requested by FNF, and for such further period as mutually agreed
by FNF and FIS ("Termination Assistance Period"). FIS's obligations under
this Section 18.4 will also consist of the following:
(a) FIS shall, upon FNF's request, promptly provide FNF with detailed
specifications and documentation available to FIS for Equipment and
FIS Software.
(b) FIS shall, at FNF's request and at FNF's sole expense, make
reasonable efforts to promptly transfer to FNF or any entity
designated by FNF, any rights to access and to use the FIS Third
Party Software then being used by FIS in providing the Termination
Assistance Services under this Agreement and FIS shall, at FNF's
request and at FNF's sole expense, make reasonable efforts to cause
the grant to FNF, or any entity specified by FNF, of any necessary
rights to access and use the FIS Third Party Software, to the extent
such rights have not previously been so acquired or transferred.
(c) Notwithstanding Section 8.7 above, FIS hereby consents to
solicitation and/or hiring by FNF of those Project Staff that FIS
and FNF jointly determine, at any time after notice of termination
of any Service Component(s), of Project Staff working on such
terminated Service Components.
(d) FIS shall make available to FNF for purchase, all Equipment owned by
FIS and used in the provision of the Services which are dedicated
solely to the Services, for a purchase price equal to the greater of
(i) the then current net book value for such Equipment or (ii) the
fair market value as determined by the Management Committee. For the
Equipment not purchased by FNF in accordance with the provisions of
the immediately preceding sentence, FIS shall identify, and assist
FNF in procuring, at FNF's sole expense, suitable functionally
equivalent replacements. Notwithstanding any of the foregoing to the
contrary, FNF shall not be required to make any payment for the
transfer of ownership rights to FNF of Equipment in connection with
the purchase of which FIS originally charged FNF the purchase price
therefor as a Pass-Through Expense. Payment shall be
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prorated to that portion of the purchase price which was not paid as
a Pass-Through Expense.
(e) At FNF's request, FIS shall make available to the extent permitted
by the terms of a lease, all leases for the Equipment leased by FIS
and used in the provision of the Services, and shall assist in
obtaining consents to such assignments.
(f) At FNF's request, FIS shall provide training reasonably required by
FNF for the personnel who will be assuming responsibility for
services and operations only during the Termination Assistance
Period. FIS shall provide training to FNF after the Termination
Assistance Period according to FIS's standard fees and class
schedules.
(g) FIS shall provide such other services only if, and at the rates,
mutually agreed to by the Parties.
ARTICLE 19. EXIT PLAN
19.1 Description of Termination Assistance Services. Within one hundred eighty
(180) days of the Effective Date, FIS will provide to FNF a description of
Termination Assistance Services, reasonably acceptable to FNF.
19.2 Implementation. Upon the expiration or termination of this Agreement for
any reason:
(a) FIS shall provide assistance in building a detailed exit plan, which
plan shall include, at a minimum, a high level work plan that sets
forth the activities and associated timeline required to effect such
a transfer and maintain ongoing operations;
(b) FIS shall provide the Termination Assistance Services pursuant to
Section 18.4;
(c) The FNF Entities will allow FIS to use, at no charge, those FNF
Entity facilities being used to perform the Termination Assistance
Services for as long as FIS is providing the Termination Assistance
Services to enable FIS to effect an orderly transition of FIS's
resources to FNF or its designees; and
(d) Each party will have the rights specified in Article 9 in respect of
the Designated Software.
ARTICLE 20. INDEMNIFICATION
20.1 Indemnification by FIS. FIS shall indemnify, defend and hold harmless
(collectively "Indemnify") FNF and its respective employees, agents,
officers, partners and designated representatives and including, for
purposes of Sections 20.1(d) and 20.3, the FNF Entities (collectively, the
"FNF Indemnified Parties") from and against any judgment, damage, fine,
demand, loss, cost of any kind, liability (including settlements and
judgments) or expense (including reasonable attorneys' fees and expenses
and court costs) (collectively, "Damages"):
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(a) arising in connection with or as a result of (i) a violation of
international, foreign, Federal, state, local or other laws or
regulations for the protection of persons or members of a protected
class or category of persons, including unlawful discrimination by
FIS or any FIS Subcontractors or any of their respective employees
or agents (collectively the "FIS Agents," and each a "FIS Agent"),
(ii) work-related injury or death caused by FIS or any FIS Agent; or
(iii) any other aspect of the employment relationship of any FIS
employee with FIS or the termination of the employment relationship
with FIS (including claims for breach of an express or implied
contract of employment), to the extent caused by alleged or actual
improper conduct of FIS or any FIS Agent;
(b) relating to any amounts including taxes, interest and penalties
assessed against FNF that are the obligations of FIS pursuant to
Article 13;
(c) arising in connection with or as a result of death, personal injury,
or damage to or loss of real or personal property, which is caused
by the acts or omissions of FIS or any FIS Agent;
(d) arising in connection with or as a result of FIS's breach of any
confidentiality obligations of FIS pursuant to Article 16; or
(e) arising in connection with the failure of FIS to comply with its
obligations pursuant to Article 10.
20.2 Indemnification by FNF. FNF shall Indemnify FIS and its respective
employees, agents, officers, and designated representatives (collectively,
the "FIS Indemnified Parties;" each of the FIS Indemnified Parties and the
FNF Indemnified Parties individually are referred to as an "Indemnified
Party") from and against any Damages:
(a) arising in connection with or as a result of (i) a violation of
international, foreign, Federal, state, local or other laws or
regulations for the protection of persons or members of a protected
class or category of persons, including unlawful discrimination by
FNF or any of FNF's subcontractors or any of their respective
employees or agents (collectively the "FNF Agents," and each a "FNF
Agent"), (ii) work-related injury or death caused by FNF or any FNF
Agent; or (iii) any other aspect of the employment relationship of
any FNF employee with FNF or the termination of the employment
relationship with FNF (including claims for breach of an express or
implied contract of employment), to the extent caused by alleged or
actual improper conduct of FNF or any FNF Agent;
(b) relating to any amounts including taxes, interest and penalties
assessed against FIS that are the obligations of FNF pursuant to
Article 13;
(c) arising in connection with or as a result of death, personal injury,
or damage to or loss of real or personal property, which is caused
by the acts or omissions of FNF or any FNF Agent; or
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(d) arising in connection with or as a result of FNF's breach of any
confidentiality obligations of FNF pursuant to Article 16.
20.3 FIS Intellectual Property Indemnification.
(a) FIS shall Indemnify the FNF Indemnified Parties with respect to
Damages arising in connection with or as a result of any actual or
alleged infringement by any of the FIS Software, FNF Third Party
Software licensed by FIS unless the terms of the license are
approved by FNF in writing in advance ("FNF Approved Software"),
Developed Software, Documentation, or the manner in which the
Services are performed of any patent, copyright, trademark, trade
name or other intellectual property or proprietary or contractual
rights of a third party. FIS shall not be responsible for any actual
or alleged infringement of Developed Software or Services which
arises out of specifications or instructions given by FNF and used
(i) to produce the Developed Software, or (ii) to perform the
Services.
(b) If, in FIS's opinion, any FIS Software, FNF Approved Software, or
Documentation or portion thereof furnished hereunder is likely to or
does become the subject of a claim of infringement or
misappropriation, FIS shall either recommend for FNF's consideration
an item which is equally suitable and upon FNF's approval of the
recommended replacement, replace the infringing item, or modify the
alleged infringement so that it becomes non-infringing, so long as
such modification or replacement does not cause a material
disruption in any FNF technology systems or operations, or at FIS's
expense, obtain the right for FNF to continue the use of such item.
(c) FIS shall use reasonable efforts to cause all licenses to FIS Third
Party Software, FNF Third Party Software that FIS licenses and/or
acquires on FNF's behalf, or other third party proprietary materials
used to provide the Services to contain infringement indemnification
for FNF to the same extent that such indemnification is provided
hereunder.
(d) This Section states FNF's and the FNF Entities' sole and exclusive
remedy for any actual or alleged infringement of any third party's
intellectual property rights.
20.4 FNF Intellectual Property Indemnification.
(a) FNF shall Indemnify the FIS Indemnified Parties with respect to
Damages arising in connection with or as a result of any actual or
alleged infringement by any of the FNF Proprietary Software, FNF
Third Party Software other than that licensed by FIS that is not FNF
Approved Software, to the development of which FIS did not
contribute, furnished under this Agreement, or any patent,
copyright, trademark, trade name or other intellectual property or
proprietary or contractual rights of a third party. FNF shall not be
responsible for any actual or alleged infringement of FNF
Proprietary Software which arises out of specifications or
instructions given by FIS.
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(b) If, in FNF's opinion, any FNF Proprietary Software, FNF Third Party
Software other than that licensed by FIS that is not FNF Approved
Software, or portion thereof furnished hereunder is likely to or
does become the subject of a claim of infringement or
misappropriation, FNF shall either recommend for FIS's consideration
an item which is equally suitable and upon FIS's approval of the
recommended replacement, replace the infringing item, or modify the
alleged infringement so that it becomes non-infringing, so long as
such modification or replacement does not cause a material
disruption to the Services or at FNF's expense, obtain the right for
FIS to continue the use of such item.
(c) This Section states FIS's sole and exclusive remedy for any actual
or alleged infringement of any third party's intellectual property
rights.
20.5 Indemnification Procedures. Upon (a) the occurrence of an event or (b) the
commencement of any civil, criminal, administrative, arbitral or
investigative claim, action, suit or proceeding (each, a "Claim") against
an Indemnified Party, in connection with which Damages have been incurred
or are likely to be incurred, notice thereof shall be given to the party
that is obligated to provide indemnification (the "Indemnifying Party") as
promptly as practicable; provided, however, that any delay on the part of
the Indemnified Party in providing such notice shall not relieve the
Indemnifying Party of its indemnification obligation except to the extent
the Indemnifying Party is detrimentally prejudiced thereby. After such
notice, the Indemnifying Party shall immediately either provide the
required indemnification or take control of the defense and investigation
of the Claim, if any, and employ and engage attorneys reasonably
acceptable to the Indemnified Party to handle and defend the same, at the
Indemnifying Party's sole cost and expense. The Indemnified Party shall,
at the expense of the Indemnifying Party, cooperate in all reasonable
respects with the Indemnifying Party and its attorneys in the
investigation, trial and defense of the Claim and any appeal arising
therefrom. No settlement of a Claim that involves a remedy other than the
payment of money by the Indemnifying Party shall be entered into without
the consent of the Indemnified Party. After notice by the Indemnifying
Party to the Indemnified Party of its election to assume full control of
the defense of the Claim, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal expenses incurred thereafter by such
Indemnified Party in connection with the defense of that Claim. If the
Indemnifying Party does not assume full control over the defense of a
Claim subject to such defense as provided in this Section 20.5, the
Indemnified Party shall have the right to defend the Claim in such manner
as it may deem appropriate, at the cost and expense of the Indemnifying
Party.
20.6 Contribution. Notwithstanding anything herein to the contrary, if any
third party Claim is commenced against one or both parties that would, if
brought against both parties, entitle each party to indemnification from
the other under either Section 20.1, Section 20.2, Section 20.3 or Section
20.4 the parties shall allocate between themselves any liability or
expenses (including reasonable attorneys' fees and expenses) arising out
of or relating to such Claim, according to the parties' relative shares of
liability. Neither contributory negligence nor any analogous principle
shall be a defense to any allocation of liability or expenses pursuant to
this Section 20.6. An Indemnifying Party shall not be relieved of its
obligation to provide the defense against any Claim pursuant to such
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Indemnifying Party's obligations under this Article 20, notwithstanding
any dispute by such Indemnifying Party relating to whether any act or
omission of the Indemnified Party contributed to the Claim to which the
obligation to Indemnify arises.
20.7 Limitation of Liability.
(a) SUBJECT TO THIS SECTION 20.7, EACH PARTY SHALL BE LIABLE TO THE
OTHER FOR ALL DIRECT DAMAGES ARISING OUT OF OR RELATED TO ANY
CLAIMS, ACTIONS, LOSSES, COSTS, DAMAGES AND EXPENSES RELATED TO, IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT. SUBJECT TO SECTION
20.8 BUT NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY
TO THE OTHER FOR DAMAGES, WHETHER ARISING IN CONTRACT, TORT, EQUITY,
NEGLIGENCE OR OTHERWISE, EXCEED THE GREATER OF (A) THE FEES PAID BY
FNF TO FIS PURSUANT TO THIS AGREEMENT OVER THE TWELVE MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY AND
(B) TEN MILLION DOLLARS ($10,000,000).
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER.
20.8 Exclusions. The provisions set forth in Section 20.7(a) do not apply to
and do not limit damages recoverable for (a) the indemnification
provisions set forth in this Article 20, (b) breach of Section 16.1, or
(c) damages arising out of the gross negligence or intentional misconduct,
nor shall any such damages accrue toward satisfaction of the foregoing
limitation on damages.
ARTICLE 21. WAIVER
No delay or omission by a party to exercise any right or power accruing
hereunder will impair or be construed as a waiver of any such right or power nor
will such party be deemed to have waived any event of default or acquiesced in
it, and such party shall exercise every such right and power from time to time
and as often as shall be deemed expedient. All waivers shall be in writing and
signed by the party waiving its rights.
ARTICLE 22. INSURANCE
22.1 Coverage Required. During the Term, FIS shall obtain and maintain, and
require any FIS Subcontractors performing Services pursuant to the terms
of this Agreement to obtain and maintain, without incremental cost to FNF,
until the end of the Term and for any Termination Assistance Period,
insurance of the types and in the amounts set forth below. FIS's duty to
maintain such insurance coverage for itself shall nonetheless be relieved
for so long as FIS is insured under the insurance policy or policies
maintained by FNF, provided, however, that FIS reimburses FNF for FIS's
portion of the cost of such
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insurance. Upon written agreement between the Parties at the time FIS will
cease to be covered by FNF's insurance, and subject to annual renewal,
this provision may be satisfied by FIS's self-insurance. The required
insurance coverages are:
(a) statutory workers' compensation in accordance with all
international, foreign, federal, state and local requirements;
(b) employer's liability insurance in an amount not less than $1,000,000
per occurrence, covering bodily injury by accident or disease,
including death;
(c) commercial general liability (including products/completed
operations with coverage being maintained for a period of five (5)
years past the termination or expiration of this Agreement and
contractual liability insurance or such equivalent insurance in a
foreign jurisdiction) in an amount not less than $1,000,000;
(d) comprehensive automobile liability covering all vehicles that FIS
owns, hires or leases in an amount not less than $1,000,000
(combined single limit for bodily injury and property damage);
(e) professional errors and omissions liability insurance in an amount
of not less than $5,000,000 per occurrence for liability arising out
of any negligent act, error, mistake or omission of FIS or any FIS
Subcontractors performing Services pursuant to the terms of this
Agreement; and
(f) fidelity insurance covering all employees of FIS with limits of not
less than $2,000,000 per claim.
22.2 Insurance Documentation. To the extent third party insurance is obtained
or maintained pursuant to Section 22.1, FIS shall, within ten (10) days of
commencing work, furnish to FNF certificates of insurance or other
appropriate documentation (including evidence of renewal of insurance)
evidencing all coverage referenced in Section 22.1 and naming FNF as an
additional insured on those policies described in Section 22.1(c) and (d)
above. Such certificates or other documentation shall include a provision
whereby thirty (30) days' notice must be received by FNF prior to coverage
cancellation or material alteration of the coverage by either FIS or any
FIS Subcontractors performing Services pursuant to the terms of this
Agreement, or the applicable insurer. If reasonably requested by FNF,
certified copies of any or all of the actual policies of insurance
required hereunder shall be provided to FNF.
ARTICLE 23. MISCELLANEOUS PROVISIONS
23.1 Notices. Except as otherwise specified in this Agreement, all notices,
requests, consents, approvals, and other communications required or
permitted under this Agreement shall be in writing and shall have been
deemed to have been properly given, unless explicitly stated otherwise if
sent to each of the persons at the addresses or facsimile numbers set
forth below for a party by (i) Federal Express or other comparable
overnight courier, (ii) registered or certified mail, postage prepaid,
return receipt requested, or (iii) facsimile
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during normal business hours to the place of business of the recipient;
provided that any facsimile notice must be followed the same day with a
delivery of identical notice by Federal Express or other comparable
overnight courier, for next business day delivery.
In the case of FNF, to each of:
Fidelity National Financial, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
With a copy to: General Counsel
In the case of FIS: Fidelity Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
With a copy to: General Counsel
All notices, notifications, demands or requests so given shall be deemed
given and received (i) if mailed, three (3) days after being deposited in
the mail; (ii) if sent via overnight courier, the next business day after
being deposited; or (iii) if sent via facsimile on a business day, that
day, or if sent via facsimile on a day that is not a business day, the
next day that is a business day; provided that any facsimile notice must
be followed the same day with a delivery of identical notice by Federal
Express or other comparable overnight courier, for next business day
delivery. Either party may change its address(es) or facsimile number(s)
or the individual(s) for notification purposes by giving the other party
notice of the new address(es) or telecopy number(s) and/or individual(s)
and the date upon which it will become effective.
23.2 Counterparts. This Agreement shall be executed in any number of
counterparts all of which taken together will constitute one single
agreement between the parties.
23.3 Headings. The article and section headings and the table of contents are
for reference and convenience only and will not be considered in the
interpretation of this Agreement.
23.4 Relationship. The performance by FIS of its duties and obligations under
this Agreement are that of an independent contractor and nothing contained
in this Agreement, except for the limited agency expressly provided for
herein, creates or implies an agency relationship between FNF and FIS, nor
will this Agreement be deemed to constitute a joint venture or partnership
between FNF and FIS. FIS and FNF agree that FIS is an independent
contractor and its personnel are not FNF's agents or employees for federal
or state tax purposes, and are not entitled to any FNF employee benefits.
Except as specifically set forth herein, each party assumes sole and full
responsibility for its acts and the acts of its personnel, agents and
subcontractors. Neither party has any authority
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to make commitments or enter into contracts on behalf of, bind, or
otherwise obligate the other party in any manner whatsoever except as
specifically set forth herein.
23.5 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, then the remaining
provisions of this Agreement or the application of such provision to
persons or circumstances other than those as to which it is invalid or
unenforceable will not be affected thereby, and each such provision of
this Agreement will be valid and enforceable to the extent permitted by
law.
23.6 Entire Agreement. This Agreement and each of the Exhibits and Schedules,
which are hereby incorporated by reference into this Agreement, is the
entire agreement between the parties with respect to its subject matter,
and there are no other representations, understandings, or agreements
between the parties relative to such subject matter. This Agreement is
intended to supersede any and all continuing agreements among FIS and/or
Subsidiaries on the one hand and FNF and/or FNF Entities on the other, for
substantially similar services as contemplated herein.
23.7 Amendments. No amendment to, or change, waiver, or discharge of, any
provision of this Agreement will be valid unless in writing and signed by
an authorized representative of the party against which such amendment,
change, waiver, or discharge is sought to be enforced.
23.8 Governing Law. This Agreement will be interpreted pursuant to and governed
by the laws of the State of Florida applicable to contracts to be
performed within Florida, without giving effect to any conflicts of law
doctrine of such State.
23.9 Survival. The terms of Article 9, Section 12.2, Section 13.3, Article
14.2, Article 15, Article 16, Article 17, Section 18.4, Article 20,
Article 21, and Article 23 will survive the expiration of this Agreement
or termination of this Agreement for any reason.
23.10 Third Party Beneficiaries. Each party intends that this Agreement will not
benefit, or create any right or cause of action in or on behalf of, any
person or entity other than FNF or FIS or, with respect to Sections
20.1(d) and 20.3, the FNF Entities. Notwithstanding the foregoing
sentence, (i) FIS shall have the right to bring a claim against FNF to the
extent such claim results from an FNF Entity failing to abide by the terms
of this Agreement and (ii) FNF shall have the right to bring any claim
against FIS on behalf of any other FNF Entity which results from FIS's
failure to deliver Services to such FNF Entity in accordance with the
terms of this Agreement or to comply with the terms of this Agreement.
23.11 Acknowledgment. FNF and FIS each acknowledge that the limitations and
exclusions contained in this Agreement have been the subject of active and
complete negotiation between the parties and represent the parties'
agreement based upon the level of risk to FNF and FIS associated with
their respective obligations under this Agreement and the payments to be
made to FIS and charges incurred by FIS pursuant to this Agreement. The
parties agree that the terms and conditions of this Agreement will not be
construed in
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favor of or against any party by reason of the extent to which any party
or its professional advisors participated in the preparation of this
Agreement.
23.12 Covenant of Further Assurances. FNF and FIS covenant and agree that,
subsequent to the execution and delivery of this Agreement and without any
additional consideration, each of FNF and FIS will execute and deliver any
further legal instruments and perform any acts which are or shall become
necessary to effectuate the purposes of this Agreement.
23.13 Assignment. Except as specified in Sections 3.2 and 8.4, neither FNF nor
FIS shall assign, delegate or otherwise transfer all or any part of its
rights or obligations under this Agreement or any part hereof, unless
otherwise provided for in this Agreement, without the express written
consent of the non-assigning Party. Any such attempted assignment,
delegation or transfer will be null and void and of no effect. Either
party shall be permitted to assign this Agreement to any Affiliate except
that the assigning party shall remain responsible for all obligations
under this Agreement including the payment of Fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
FIDELITY NATIONAL FINANCIAL, INC. FIDELITY INFORMATION SERVICES, INC.
By: _________________________________ By: ________________________________
Name:________________________________ Name: _______________________________
Title: ______________________________ Title: ______________________________
Date: _______________________________ Date: _______________________________
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SCHEDULE I
The defined terms used in the Agreement shall have the meanings set forth
in the Sections of the Agreement and Exhibits listed:
TERM SECTION/EXHIBITS
---- ----------------
Account Manager 8.2
Additional Services 3.5(a)
Affected Performance 15.1
Affiliate 3.2
Agreement Heading
Ancillary FIS Proprietary Software 9.3(c)
Ancillary Tasks 3.1(c)
As is environment 3.1(a)
Base CPI Index 13.8(a)
Change Control Procedures 3.8
Change of Control 18.2(c)
Claim 20.5
Confidential Information 16.1
Consents 10
Core Services 3.3
CPIU 13.8(a)
Current CPI Index 13.8(a)
Damages 20.1
Data Safeguards 6.2(b)
Deadline Notice 2.2(a)
Default Cure Period 18.2(a)
Default Notice 18.2(a)
Deposit Amount 7.3
Deposit Institution 7.3
Designated Software 9.4
Developed Software 9.5
Direct Competitor 8.4
Disaster Exhibit A
Dispute(s) 7.2(a)
Disputing Party 7.3
DRP Exhibit A
Effective Date Heading
Equipment 9.6
Master Services Agreement
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TERM SECTION/EXHIBITS
---- ----------------
Escalation Process 7.2(d)
Executive Management 7.2(c)
Expiration Date 2.2(a)
Failure Recognition Event 5.3
Fee Audit 14.2
Fee Audit Report 14.2
Fee Auditor 14.2
Fee Payment Date 14.2
Fees 13.1
Fidelity Information Security Policy Exhibit J
First Tier Management 7.2(b)
FIS Heading
FIS Agent(s) 20.1(a)
FIS Developed Items 9.5
FIS Equipment 9.6
FIS Indemnified Parties 20.2
FIS Key Employees 8.2
FIS Managed Agreements 11.1
FIS Managed Invoice(s) 11.2
FIS Proprietary Software 9.3(a)
FIS Relationship Manager 7.1
FIS Service Location Move 6.1
FIS Service Location Project Plan 6.1
FIS Service Location(s) 6.1
FIS Software 9.4
FIS Subcontractors 3.2
FIS Third Party Software 9.4
FNF Heading
FNF Agent 20.2(a)
FNF Approved Software 20.3(a)
FNF Data 12.1
FNF Entity(ies) 3.1(a)
FNF Equipment 9.6
FNF Indemnified Parties 20.1
FNF Interruption Event 15.2
FNF Location 6.2(f)
FNF Proprietary Software 9.2
Master Services Agreement
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TERM SECTION/EXHIBITS
---- ----------------
FNF Relationship Manager 7.1
FNF Software 9.2
FNF Third Party Software 9.2
Force Majeure Event 15.1
FTE 8.2
Future State environment 3.1(b)
Incidents Exhibit A
Indemnified Parties 20.2
Indemnify 20.1
Indemnifying Party 20.5
Initial Term 2.1
Initial Term Expiration Date 2.1
Management Committee 7.1
Move Expense Summary 6.1
NAB 6.2
One Year Renewal Period 2.2(a)
On-Site FTEs 8.2
On-Site Period 8.2
Operations Analyst On-Site Period 8.2
Pass-Through Expenses 13.9
Personal Data 16.6.1
Prime Rate 14.2
Privileged Work Product 16.2
Programmer Support On-Site Period 8.2
Project Staff 8.1
Regulation 3.13
Release Package Exhibit A
Removal Expense Summary 8.4
Renewal Notice 2.2(a)
Renewal Period 2.2(a)
Renewal Right 2.2(a)
Report(s) 3.12
Security Incident 6.2(c)
Self-Help Code 17.1(b)(3)
Service Component 18.2(a)
Service Level Audit 5.7
Service Level Audit Report 5.7
Master Services Agreement
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TERM SECTION/EXHIBITS
---- ----------------
Service Level Auditor 5.7
Service Level Credit Event 5.4
Service Level Credit Trigger 5.4
Service Level Credits 5.4
Service Levels 5.1
Services 3.1(a)
Statement of Work 3.5
Subsidiary 3.1(d)
Systems 9.7
Technology Review 3.10(a)
Term 2.2(a)
Termination Assistance Period 18.4
Termination Assistance Services 18.4
Termination Fee 18.5
Two Year Renewal Period 2.2(a)
Unauthorized Access 16.4
Unauthorized Code 17.1(b)(3)
Utilize 9.3(c)
Year 2000 Compliant 17.1(b)5(a)
Master Services Agreement
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