EXHIBIT 10.39
MASTER TITLE PLANT ACCESS AGREEMENT
This Agreement is being executed for the purpose of providing CUSTOMER access to
certain records or data owned by PROPERTY INSIGHT or its providers and to
certain services or software offered by or through Property Insight
(collectively, the "Services"), pertaining to real property in the County or
Counties as (each, a "County") set forth on the applicable County Schedule(s) or
to transactions relating to such real property. The terms of each County
Schedule, and all Appendixes thereto, are hereby incorporated into this
Agreement by this reference.
1. DEFINITIONS. (Note: Not all terms are applicable to all counties. See
the county schedules.)
(a) CUSTOMER. "Customer" or "Customers" means the customer
specifically indicated on the signature page of this Agreement, as well as each
user specifically identified on the Schedules hereto so long as such user is an
affiliate of the Customer so indicated on the signature page.
(b) CUSTOMER STARTERS. "Customer Starters" are Starters provided by
Customer to Property Insight.
(c) DATABASES. "Databases" consist of certain designated records of
Property Insight accessible via an on-line system. The PI/GI Database includes
the property index ("PI") and the General Index (the "GI" and sometimes known as
the Individual/Corporation Index). Property Insight's Corporation, Limited
Partnership and Notary Inquiry System ("CPN System") contains certain
information provided to Property Insight by the Office of the Secretary of
State. The Image System contains electronic copies of certain Maps, Official
Records and Starters ("Image System"). The Tax Service Database consists of tax,
bond and assessment information. Property Insight may develop, or acquire the
right to offer access to, other Databases. If access to any such other Database
is made available by Property Insight to Customer, any special terms of such
access shall be as set forth in an amendment hereto or on an amended County
Schedule, as applicable.
(d) RECON TRACKING SERVICE. "Recon Tracking Service" consists of
services for the purpose of tracking deeds of trust and reconveyances
("Reconveyance Tracking System"). The Reconveyance Tracking System is designed
to meet the requirements of California Civil Code Section 2941(b) (3), which
sets forth a procedure in which a title insurer that has processed a pay-off of
a deed of trust, can execute and record a Release of Obligation if the trustee
does not record a Reconveyance within a specified period of time.
(e) GROSS TITLE PREMIUMS. "Gross Title Premiums" means all premiums
and other fees charged by Customer for Title Orders (including cancellation
fees), as well as any other reports or products in which Title Records are used
and from which Customer generates income. To the extent applicable, such amounts
shall be determined and reported by Customer to Property Insight on a
County-by-County basis.
(f) INQUIRY(IES). "Inquiry(ies)" means any instance of accessing
Property Insight Databases including but not limited to, Inquiry by
Date/Document reference, General
Index (AKA Individual/Corporation) and Property Information. Each instance of
such Inquiries may be counted separately to screen and/or to printer.
(g) LOT BOOKS. "Lot Books" consist of copies of indices in tangible
form of recorded documents relating to parcels of real property in such County
(for example, Numbered Tracts, Alphabetical Tracts, Ranchos and Sectional
Lands). Lot Books may be available as specified in such schedule.
(h) MAPS. "Maps" consist of copies of diagrams and other graphic
representations of boundaries relating to parcels of real property in such
County.
(i) OFFICIAL RECORDS. "Official Records" (excluding Maps) consist of
copies of items recorded in the County Recorders' Office.
(j) PC or PCs. "PC" or "PCs" means a single or group of terminals,
workstations or personal computers of all types including printers or any method
of accessing information from the Property Insight on-line Databases.
(k) PROVIDER. "Provider" means each of the persons which owns (or
co-own) or distributes, furnishes, licenses or otherwise makes available to
Property Insight information, software or other similar material which is made
available to, or which is used (directly or indirectly) by Customer under this
Agreement.
(l) STARTERS. "Starters" consist of copies of previously issued title
products that are part of the Property Insight starters library from to time,
which may include policies, commitments, preliminary reports, guarantees and
binders as such products may be further specified in applicable schedules
attached to this Agreement.
(m) TAX SERVICE. "Tax Service" means tax data made available to
Customer either by online databases or by manual access.
(n) TITLE ORDER. "Title Order" means an order, by a customer of
Customer, of a Title Search and an examination thereof which may result in the
issuance of an evidence of title (for example, a title policy, binder,
guarantee, or endorsements) or delivery of other reports or products in which
Title Records are used (for example, a preliminary report).
(o) TITLE PLANT. "Title Plant" means a currently maintained index of
land records and copies of Official Records and other materials related thereto,
excluding Starters, for a County.
(p) TITLE RECORDS. "Title Records" consist of land title records and
materials (including on-line accessible Databases, Tax and Assessment records,
Lot Books, Maps, portable media, and Official Records). The Title Records shall
also include any additions and shall be subject to any deletions made through
Property Insight's customary daily input and purging procedures.
(q) TITLE SEARCH. "Title Search" means the functions of identifying,
locating and copying the proper accounts and documents (including information
from on-line
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accessible Databases, Lot Books, Maps, Official Records, and Starters) which are
necessary for examining, reporting on and otherwise issuing an evidence of title
on specific parcels of real property.
2. SERVICES.
(a) Performance. Property Insight will perform the Services identified
in each County Schedule. Such Services are subject to the terms and conditions
of this Agreement, the terms and conditions set forth in the applicable County
Schedule, and all Appendixes thereto. As the posting of the computerized
databases are dependent upon the receipt of the recorded documents from the
county(ies), Property Insight shall make every attempt to maintain the currency
of the Property and General indexes in a commercially reasonable manner. Lot
Books, Maps, Official Records, Starters and other materials included in the
Title Records are maintained in one or more formats or media determined by
Property Insight (for example, on microfilm or paper or in electronic form as
digital files) and Property Insight reserves the right to modify any such format
or medium from time to time. Both parties recognize that Property Insight or its
Providers may in the future acquire records and materials through purchase,
lease, assignment or other method of transfer and that Property Insight may
restrict, or may be restricted from allowing, Customer from using such records
and materials. Any records and materials so acquired and restricted are not
included in this Agreement.
(b) Access. For each County selected on a County Schedule, Property
Insight grants Customer nonexclusive computerized title plant access during the
normal working hours of the local title plant operation. Consult the local
operation for their hours of operation. Additional service hours may be provided
upon request by Customer at the then prevailing hourly rate, as set by Property
Insight. Such access and services are subject to all the other provisions of
this Agreement.
(c) Joint Ownership. In certain Counties, selected Title Record
information is jointly owned by Property Insight's Providers and one or more
other co-owners. Customer access to any such jointly-owned information may be
provided by a County Schedule to this Agreement or by a separate agreement among
Customer, Property Insight and the joint owner(s). If jointly-owned information
is made available to Customer under this Agreement, the co-owner(s) is (are)
identified on the applicable County Schedule for such County. Co-Owners are
protected collectively with Property Insight by all appropriate provisions of
this Agreement wherever jointly-owned information is identified on the
applicable County Schedule. The term "Property Insight" in such circumstances
shall include the co-owner(s).
(d) Training. Property Insight will provide reasonable initial
training in the use of Property Insight on-line systems or products at no
additional charge per its then current training policies. Training may be
provided by visits to Customer's premises, by telephone, by Internet, or at a
Property Insight office location, at Property Insight's discretion. Customer is
responsible for training its new employees; however, additional training
requested by Customer will be scheduled and provided on a resources available
basis at Property Insight's then current fee.
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(e) Special Services. In the event that Customer requests Property
Insight to supply special services, reports or items, Customer will pay the
then-current fees for Property Insight labor, out-of-pocket expenses paid or
incurred and an administrative fee. Property Insight will provide an estimate of
such fees upon request.
(f) No Other Services. Property Insight shall not be obligated to
furnish any information or service not specifically set forth in this Agreement
or a County Schedule, including without limitation: (a) any tax, bond or
assessment information; (b) any title engineer or other help for the purpose of
verifying or creating a legal description of land involved in Customer's Title
Orders; or (c) any parking facilities for Customer's employees.
(g) Plant Location. Property Insight shall have the right at any time
to move the physical location of each of the Property Insight on-line systems,
Databases, Title Records, or facilities from one location to any other location
upon three (3) months prior written notice, provided, however, that if Property
Insight proposes to move the physical location of any Title Records, it shall
consult with the Customer(s) to in an effort determine an appropriate location
therefor, taking into consideration the requests and convenience of all
customers of Property Insight (including the Customer(s)) that use or are likely
to use such Title Records.
(h) Posting of Office Information. In applicable counties, Property
Insight shall post office information entries to the databases within 24 hours
of receipt of the completed OI posting form. Property Insight posts OI entries
as a convenience to our customers and bears no liability for errors or
omissions.
3. FEES AND PAYMENT.
(a) Fees. The Customer indicated on the signature page of this
Agreement shall, on behalf of all Customers, pay Property Insight the fees for
the Services specified in the County Schedules and the Appendix for Technology
Related Charges. Any monthly minimum fee shall be due and payable regardless of
whether or not Customer finds it necessary to use the applicable Service. The
fees and charges do not include taxes. Customer will pay, or reimburse, Property
Insight for payment of, any applicable sales, use, personal property or similar
taxes and any government charges based on transactions hereunder, exclusive of
corporate income or franchise taxes based on Property Insight's net income.
Property Insight may increase the fees set forth in each County Schedule as
follows: (i) annually on the anniversary date of the Agreement by the percentage
amount indicated by the annual change in the Consumer Price index for urban wage
earners and clerical workers for the national average as compiled by the U.S.
Department of Labor, Bureau of Labor Statistics ("Index") for the twelve (12)
months immediately preceding the adjustment date, except where fees are based on
Gross Title Premiums; (ii) monthly where the cost increases to acquire documents
or other media necessary to create or provide the Title Records, except where
fees are based on Gross Title Premiums; and (iii) triennially on the anniversary
date of this Agreement to amounts which reflect the then current market rates
for the Services for each County charged by Property Insight to its other
customers.
(b) Reports. For any Fees based upon Gross Title Premiums, Customer
must furnish a written report to Property Insight on or before the 10th day of
each month showing the
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information necessary to enable Property Insight to determine the amount of
Gross Title Premiums for the prior month. This information shall be confidential
to and used by Property Insight's auditors, accounting personnel and management
and shall not be used for other purposes by Property Insight. The report form
shall be designed and furnished by Property Insight and signed by an officer of
Customer. For any Fees based on number of inquiries or orders or the like,
Property insight shall furnish a written inquiry report to Customer on or before
the 10th day of each month, setting forth the number of inquiries, orders, etc,
by Customer in the prior month and otherwise providing Customer with such other
information regarding the procedure and methods used to count inquiries, orders,
etc. for purposes of this Agreement.
(c) Due Date. Customer shall pay all sums which are due and payable to
Property Insight within 30 days after the invoice date, with the exception of
fees based on Gross Title Premiums (including any applicable minimum monthly
fee) which are due and payable together with the report for such month on or
before the 10th day of each month. Customer will be in default under this
Agreement whenever Customer fails to pay any sum due to Property Insight for a
period of fifteen (15) days after the sum has become due and payable.
(d) Audit. Should any of Customer's fees be based on Gross Title
Premiums, Property Insight shall have the right to audit the accounts of
Customer, at the expense of Property Insight, in order to verify the correctness
of the sums of money being paid to Property Insight by Customer. These audits
shall be conducted so as not to unreasonably interfere with the normal business
routine of Customer. Upon request of Property Insight, Customer shall supply the
following to Property Insight at the end of each fiscal year: (i) a copy of
Customer's reports to the Insurance Commissioner of the State; or (ii) audited
financial statements for each County in which fees due hereunder are based upon
Customer's Gross Title Premiums in such County.
4. TERM.
(a) Term. Unless sooner terminated in accordance with the provisions
hereof, this Agreement shall continue in effect.
(b) Termination. The obligation to provide Services under this
Agreement may be terminated by any of the following means:
(1) at any time by mutual agreement of the parties hereto, in
which event the obligation to provide Services under this Agreement
shall terminate as of the date specified by the parties;
(2) as to Customer, at any time by Property Insight, if Customer
breaches any warranty or fails to perform any material obligation
hereunder, and such breach is not remedied within 30 days after
written notice thereof to Customer, in which event the obligation to
provide Services under this Agreement shall terminate on the 20th
business day following the expiration of such 30-day cure period;
provided that if the breach or default is of a nature that it cannot
reasonably be cured within a 30-day period and Customer is actively
pursuing a cure in good faith, then no default shall be deemed to have
occurred so long as the
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default is cured as promptly as reasonably possible and in any event
prior to the first anniversary of the occurrence of such default; and
provided, further, that, to the extent that such breach or default
concerns one or more, but not all, of the Counties for which Services
are provided hereunder, the termination of the obligation to provide
Services under this Agreement as to such Counties shall not affect the
effectiveness of this Agreement to the obligations of Property Insight
to the other Counties nor the obligations of Customer regarding the
other Counties (other than the County(ies) affected by the default or
breach) to Property Insight;
(3) as to Property Insight, at any time by Customer, if Property
Insight breaches any warranty or fails to perform any material Service
obligation hereunder, and such breach is not remedied within 30 days
after written notice thereof to Property Insight, in which event the
obligations of Customer under this Agreement shall terminate on the
20th business day following the expiration of such 30-day cure period;
provided that if the breach or default is of a nature that it cannot
reasonably be cured within a 30-day period and Property Insight is
actively pursuing a cure in good faith, then no default shall be
deemed to have occurred so long as the default is cured as promptly as
reasonably possible and in any event prior to the first anniversary of
the occurrence of such default; and provided, further, that, to the
extent that such breach or default concerns one or more, but not all,
of the Counties for which Services are provided hereunder, the
termination of the obligations of Customer under this Agreement as to
such Counties shall not affect the effectiveness of this Agreement to
the obligations of Customer regarding the other Counties nor the
obligations of Property Insight (other than the county or counties
affected by the default or breach) to Customer;
(4) as to Customer, at any time by Property Insight, if Customer
shall admit in writing its inability to, or be generally unable to,
pay its debts as such debts become due, or shall (a) 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, (b) make a
general assignment for the benefit of its creditors, (c) commence a
voluntary case under the federal Bankruptcy Code, (d) 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, (e) 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 (f) take any company action for the purpose of
effecting any of the foregoing, in which event as to Customer the
obligation to provide Services under this Agreement shall terminate
immediately;
(5) as to Property Insight, at any time by Customer, if Property
Insight shall admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due, or shall (a) 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, (b) make a
general assignment for the benefit of its creditors, (c) commence a
voluntary case under
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the federal Bankruptcy Code, (d) 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, (e) 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 (f) take any company action for the purpose of effecting any
of the foregoing, in which event the obligations of Customer under
this Agreement shall terminate immediately;
(6) as to Customer, on or after the 5th anniversary of the date
on which this Agreement becomes effective (the "Effective Date"), by
Property Insight, upon 5 years' prior written notice to Customer as to
one or more Counties; provided that the termination of the obligation
to provide Services under this Agreement as to such Counties shall not
affect the effectiveness of this Agreement to the obligations of
Property Insight with respect to the other Counties nor the
obligations of Customer with regard to the other Counties;
(7) as to Property Insight, on or after the 5th anniversary of
the Effective Date, by Customer, upon 5 years' prior written notice to
Property Insight as to one or more Counties, provided that the
termination of the obligation to provide Services under this Agreement
as to such Counties shall not affect the effectiveness of this
Agreement to the obligations of Property Insight with respect to the
other Counties nor the obligations of Customer with regard to the
other Counties; or
(8) as to Property Insight, at any time by Customer, if there has
been a change in control of Property Insight; it being understood,
that for purposes of this provision, "change of control" means a
reorganization, merger, share (or LLC ownership interest) exchange or
consolidation, or sale or other disposition of more than 50% of the
LLC ownership interests in, or all or substantially all of the assets
or business of, Property Insight, other than a transaction in which no
person or entity, other than Fidelity National Information Solutions
("FNIS") or an entity controlled by FNIS, will have beneficial
ownership, directly or indirectly, of 50% or more of the LLC ownership
interests of Property Insight or the power to appoint the LLC
manager(s) or vote in the election of directors.
5. OWNERSHIP AND USE.
(a) Ownership. All Title Records and all programs, Databases, manuals
and documentation relating to any Service, Database or system (including without
limitation, compression, storage, and retrieval techniques and formats and any
enhancements made thereto) are and shall remain the property of Property Insight
or its Providers. Customer agrees to not make copies of such manuals and
documentation. Customer agrees to return all applicable Property Insight
property upon termination of this Agreement or of a County Schedule.
(b) Customer Use. Title Records made available to Customer under this
Agreement are to be used by Customer solely for the purpose of conducting Title
Searches of
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specific parcels of real property and examinations thereof in connection with
bona fide Title Orders of Customer. Without limiting the generality of the
foregoing, Customer agrees that access to the Title Records shall not be
utilized by Customer or any of its employees for the purpose of furnishing any
Title Record information to any other title insurance company, title company, or
any person, firm or corporation except Customer and Customer's customers in the
ordinary course of its business. However, Customer shall have the right to
utilize the Title Records to furnish the usual customer service as to inquiry by
customers of Customer as regards specific parcels of land or specific documents
covered in such Title Records; provided that Customer shall not deliver a copy
of any Starter (other than a Customer Starter) to any other person.
(c) No Tours or Demonstrations. Customer will not (1) conduct any
'tour' of, or give access to, any facility where the Title Records are located,
or (2) demonstrate the use of the Property Insight on-line system or other
systems, or make the documentation for such systems available, except to train
persons who are authorized employees and contractors of Customer acting within
the scope of this Agreement provided, however, that Customer may in the course
of its business demonstrate such systems within Customer's own facilities.
(d) Nonexclusive Use. It is recognized by the parties that Property
Insight shall continue to use the Title Records in the usual and ordinary course
of business while at the same time furnishing services to Customer as well as
others.
(e) Advertisement of Use or Ownership. During the term of the
Agreement, Customer shall not publicize to the public that Customer owns any
Title Records or Property Insight Title Plant or has any interest therein except
such rights as are specifically granted to Customer by this Agreement. Likewise,
during the term of this Agreement, Property Insight shall not, in any
advertisement or publicity, state that Customer is dependent upon Property
Insight for use of the Title Records or any Property Insight facility. Property
Insight may, however, publicize to whatever extent it may desire, its ownership
of the Title Records and its facilities and services.
(f) Due Care. Customer agrees to exercise due care in the use of
Property Insight facilities, services, systems and information, so as to prevent
loss or damage. Each party agrees that it shall be liable to the other (and, if
applicable, its Providers) for any loss or damage to any property of the other
or any Providers arising out of a failure to exercise due care or arising out of
an intentional, dishonest or fraudulent act of an employee of such party.
(g) Customer Title Plant. Customer agrees that if at any time during
the term of this Agreement it elects to build or participate in the building of
a Title Plant or to continue the maintenance of its existing Title Plant for any
County, it shall do so without the use of any Title Records obtained from a
Property Insight facility or via any Property Insight on-line system. An
election by Customer to build or participate in the building of a Title Plant or
the maintenance of its existing Title Plant shall not discharge or relieve
Customer of any of its obligations under this Agreement.
(h) Compliance with Laws and Regulations. Customer agrees to use
information received from Property Insight in compliance with all applicable
Federal, State and
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local laws and regulations, including without limitation, the Federal Credit
Reporting Act (U.S.C.A. Title ▇▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇), as amended from
time to time.
(i) Exclusive Use of Property Insight Services. With respect to the
Title Plant access Services hereunder that Property Insight will provide to each
Customer as of the Effective Date, each Customer agrees to use Property Insight
exclusively for Title Plant access in all of the geographic locations described
on the schedules hereto at all times during the term of this Agreement, subject
in all cases to the termination provisions set forth in Section 4 and to the
provisions of this Section 5(i). To the extent that, after the Effective Date,
Property Insight has or acquires the right to obtain Title Plant access for a
geographic location in which a Customer is doing business and is receiving Title
Plant access from any other party (other than Property Insight or a direct
subsidiary of such Customer), then, so long as the service levels and pricing
offered by Property Insight for Title Plant access in that geographic location
are as good or better than the service levels and pricing in effect with such
other party, if requested by Property Insight, such Customer agrees to (x)
terminate its Title Plant access contract with such other party at the earliest
date permitted without incurring a termination fee or penalty and (y) enter into
a contract with Property Insight for the provision of Title Plant access
(similar to that provided hereunder) to the applicable geographic location.
Furthermore, each Customer agrees that, so long as Title Plant access Services
are being provided to it hereunder, to the extent that (A) such Customer
determines to enter into a service arrangement with any other party (other than
a direct subsidiary of such Customer) to obtain Title Plant access in any
geographic location not covered by the schedules to this Agreement, (B) Property
Insight can obtain access to Title Plants in that geographic location, and (C)
the service levels and pricing offered by Property Insight for such Title Plant
access in the applicable geographic location are as good as or better than the
service levels and pricing offered by such other party, then if requested by
Property Insight, such Customer agrees to obtain such Title Plant access for the
applicable geographic location from Property Insight exclusively. If the service
levels or pricing terms offered by Property Insight for Title Plant access in
such other geographic location(s) pursuant to this Section are not as good or
better than those offered by the other applicable party and if the applicable
Customer has otherwise complied with the provisions of this Section, then
nothing contained herein shall restrict or limit the ability of such Customer to
enter into any service arrangement with another party to obtain Title Plant
access in any other geographic location(s). Notwithstanding the foregoing,
nothing in this Section 5(i) shall preclude Customer from utilizing generally
available non-title-based search services (such as publicly available material
accessible on the internet) for single record searches or specific searches
(such as an internet search of court records or UCC financing statements) that
do not involve access to title plants or what would customarily be considered to
be full service title plant information or involve obtaining title plant search
services from any entity that would reasonably be viewed as a competitor of
Property Insight.
6. DISCLAIMERS AND LIMITATION OF LIABILITY.
(a) Disclaimer of Liabilities. Except as expressly set forth herein,
Property Insight and Customer agree that Property Insight (and, if applicable,
its Providers) assumes no liability and shall not be held liable to Customer, or
to Customer's customers or insureds, or to any other person to whom Customer may
furnish any title policy, binder, guarantee, endorsement or other title
assurance, or any report or title information, by reason of any error or
omission or
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assertion of error or omission in any information (including any Title Records
obtained from a Property Insight facility or via an on-line system and furnished
to Customer by Property Insight) or resulting from the use of any Service or
deliverable. PROPERTY INSIGHT MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, CONCERNING THE ACCURACY OR COMPLETENESS OF THE TITLE RECORDS
MADE AVAILABLE TO CUSTOMER, WHETHER IN TANGIBLE FORM OR VIA AN ON-LINE SYSTEM OR
CONCERNING ANY PRODUCT. Customer agrees that in no event shall Property Insight
(and, if applicable, its Providers) be liable for any lost profits or for any
special, consequential or exemplary damages, even if Property Insight has been
advised of the possibility of such damages.
(b) Limitation of Liability. In the event that Customer discovers an
error, defect or omission in any Title Record, Property Insight's sole
obligation, and Customer's exclusive remedy with respect thereto, is to replace
such Title Record with a duplicate copy of the applicable record if a better
copy of the record is available from the source.
(c) Third-Party Providers. Certain materials and information provided
or made available to Customer under this Agreement are obtained by Property
Insight from third party Providers. In the event that any such Provider falls to
deliver (or delays the delivery of) such material or information (through no
fault of Property Insight) or in the event that any such Provider materially and
adversely modifies the conditions or cost to Property Insight of obtaining such
material or information, then Property Insight, at its option, may: (i) use
reasonable efforts to seek alternative sources of supply on commercially
reasonable terms; or (ii) suspend or terminate its obligations to Customer under
this Agreement whether with respect to the portion of such Agreement which
relates thereto or with respect to the entire Agreement upon thirty (30) days
written notice; or (iii) notwithstanding any other provision of this Agreement
to the contrary, increase the applicable fees or charges upon thirty (30) days
written notice; or (iv) any combination of the foregoing. Property Insight will
incur no liability to Customer with respect to any action or omission under this
Section. In the event that Customer receives a notice pursuant to this Section
substituting a service or increasing the price thereof, then Customer may
terminate such service if it notifies Property Insight within thirty (30) days
after receipt of notice from Property Insight regarding such service.
(d) Injury or Property Damage. Property Insight shall not be liable
for injuries to any employees, guests or invitees of Customer nor for damage to
property of Customer caused by the conditions of any Property Insight facility,
except for injury or damage arising from Property Insight's gross negligence or
willful misconduct. Customer agrees to neither hold nor attempt to hold Property
Insight, its agents or employees liable for any injury or damage, either
proximate or remote, occurring through or caused by any repairs, alterations,
injury or accidents in or to the premises, or adjacent to the premises or in
other parts of the premises in which Title Records are stored, accessed or
located, whether by reason of the negligence or fault of Property Insight,
another customer or any other person. Property Insight shall not be liable for
any injury or damage occasioned by gas, smoke, rain, snow, wind, ice, hail,
water, lightning, earthquakes, war, civil disorder, strike, defective electrical
wiring or the breaking or stoppage of the plumbing or sewage upon or in the
building or adjacent premises,
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whether the breakdown or stoppage results from freezing or otherwise and no
matter how often injury or damage occurs
7. INDEMNIFICATION.
(a) Alleged Errors or Omissions. If Customer, or any customer of
Customer or any other person claims or asserts that Property Insight or its
Providers have any liability by reason of an error or omission in any
information (including Title Records obtained from any Property Insight facility
or via an on-line system) furnished to Customer by Property Insight or resulting
from the use of any Service or deliverable, Customer agrees to indemnify and
hold Property Insight, its affiliates and its Providers, and their respective
directors, officers, employees and agents (the "Indemnified Parties") harmless
from and against the claim or demand, including all costs, expenses, attorneys'
fees and actual loss or losses incurred or sustained by reason of the claim or
assertion.
(b) Personal Injury and Property Damage. Customer accepts the premises
where the Title Records used by Customer are located and agrees to defend,
indemnify and hold the Indemnified Parties harmless from any and all claims,
damages, liabilities, losses or actions, including costs, expenses and
attorneys' fees, arising out of actions or claims by employees, guests or
invitees of Customer, by reason of death, injuries to person or damage to
property arising out of or relating to use of such premises or use of any
equipment located on such premises, except in instances where Property Insight
has engaged in grossly negligent activities or willful misconduct.
(c) Other Matters; Violation of Law. Customer will indemnify, defend
and hold harmless the Indemnified Parties, against and in respect to any and all
claims, damages, liabilities, losses or actions, including costs, expenses and
attorneys' fees, arising out of actions or dawns which any Indemnified Party may
at any time suffer, incur, or become subject to as a result of or in connection
with any of the following: (i) the inaccuracy of any representation made by
Customer; (ii) Customer's breach of, or failure to perform, any of Its
warranties, covenants, promises, or obligations arising under this Agreement; or
(iii) Customer's violation of any Federal, State or local law or regulation;
except in instances where Property Insight has engaged in grossly negligent
activities or willful misconduct.
(d) Procedures. When a claim or assertion is made, Property Insight
agrees to promptly give notice to Customer. Customer shall have the right, if it
so elects, to provide for the defense of Property Insight, in any action or
litigation based upon or involving the claim or assertion, by counsel of
Customer's own choosing, and approved in writing by Property Insight, at
Customer's own expense and to pursue litigation to final determination. Customer
shall also have the right, whether or not any action or litigation results, to
compromise or settle the claim on behalf of Property Insight but at the sole
cost of Customer.
8. GENERAL TERMS AND CONDITIONS.
(a) Force Majeure. If at any time either party to the Agreement is
prevented from performance when due (other than performance consisting of
payment of money) by a disaster such as or resulting from flood, hurricane,
cyclone, earthquake, fire or other event
Page 11
commonly referred to as an Act of God, causing extensive destruction or damage;
or by acts of war, riot, unlawful assembly, strikes, explosions, peaceful
protest gatherings or other similar events causing or accompanied by a lack of
access or extensive destruction; so that it is impossible or unreasonably
difficult for that party to perform, then its failure to perform when
performance is due shall be deemed excused. Provided, however, that party must
take all reasonable steps to remedy its non-performance or delay in performance
with the least possible delay, and by doing whatever may reasonably be done to
mitigate the adverse effect of its non-performance upon the other party to this
Agreement.
(b) Dispute Resolution. If either party institutes an action against
the other party for breach of this Agreement, at Property Insight's option,
arbitration shall be conducted in accordance with the Rules of Commercial
Arbitration of the American Arbitration Association ("AAA"). The arbitration
shall be conducted in Los Angeles by a single arbitrator. If the parties have
not agreed to a mutually acceptable arbitrator within thirty (30) days of the
date of the notice to arbitrate, the arbitrator shall be selected by the AAA
from its regularly maintained list of commercial arbitrators familiar with
matters similar to the subject of this Agreement. The arbitrator shall conduct a
single hearing for the purpose of receiving evidence and shall render a decision
within thirty (30) days of the conclusion of the hearing. The parties shall be
entitled to require production of documents prior to the hearing in accordance
with the procedures of the Federal Rule of Civil Procedure, shall exchange a
list of witnesses, and shall be entitled to conduct up to five (5) depositions
in accordance with the procedures of the Federal Rules of Civil Procedure. The
decision of the arbitrator shall be binding and final. The arbitrator may award
only compensatory damages, and not exemplary or punitive damages. In the event a
party asserts multiple claims or causes of action, some but not all of which are
subject to arbitration under law, any and all claims subject to arbitration
shall be submitted to arbitration in accordance with this provision.
(c) Attorneys' Fees and Costs. If either party institutes an action
against the other party for breach of this Agreement, the successful party shall
be entitled to recover costs, expenses and attorneys' fees as the court (or if
applicable, the arbitrator) directs.
(d) Interpretation. This Agreement is to be construed under the laws
of the State of California; provided that the Services will be performed in
accordance with the laws of the State where such Services are performed. If any
one or more of the terms, provisions, promises, covenants or conditions of this
Agreement, or their application to any person, corporation, other business
entity, or circumstance is to any extent adjudged invalid, unenforceable, void
or voidable for any reason whatsoever by a court of competent jurisdiction, each
and all of the remaining terms, provisions, promises, covenants and conditions
of this Agreement and their application to other persons, corporations, business
entities, or circumstances shall not be affected and shall be valid and
enforceable to the fullest extent permitted by law. This Agreement shall not be
construed against the party preparing it, but shall be construed as if all
parties prepared this Agreement. The headings of each section and paragraph are
to assist in reference only and are not to be used in the interpretation of this
Agreement. Nothing contained in this Agreement is to be deemed to constitute an
association, partnership or joint liability between the parties. The parties
have no intention or thought to agree between themselves, or even to confer
together, as to fees or premiums to be charged by them to their customers, or as
to any other processes or practices of either party.
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(e) Assignment or Transfer. This Agreement cannot be assigned, in
whole or in part, by Customer without the prior written consent of Property
Insight, which consent shall not be unreasonably withheld. If Customer's rights
and benefits in this Agreement are transferred in whole or in part by
involuntary method, or by operation of law, Property Insight shall have the
right to terminate this Agreement if the result is not satisfactory to Property
Insight. Any assignment in contravention of this Section shall be void. Property
Insight may assign the Agreement to any affiliated company by providing 30 day
notice to the Customer.
(f) Benefit. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement is solely for the benefit of the parties hereto and no
third party will have the right or claim to the benefits afforded either party
hereunder.
(g) Compliance with Laws and Regulations. Customer agrees to use
information received from Property Insight in compliance with all applicable
Federal, State and local laws and regulations, including without limitation, the
Federal Credit Reporting Act (U.S.C.A. Title ▇▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇), as
amended from time to time.
(h) Survival. Following the expiration or termination of this
Agreement, whether by its terms, operation of law or otherwise, all terms,
provisions or conditions required for the interpretation of this Agreement or
necessary for the full observation and performance by each party hereto of all
rights and obligations arising prior to the date of expiration or termination,
shall survive such expiration or termination.
(i) Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject contained in it and supersedes all
prior and contemporaneous agreements, both oral and written, representations and
understandings of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by the parties. No waiver
of any of the provisions of this Agreement is to be considered a waiver of any
other provision, whether or not similar, nor is any waiver to constitute a
continuing waiver. No waiver shall be binding unless set forth in a writing
executed by the party making the waiver. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but which together shall constitute one and the same instrument.
(j) Schedules. Each of the Schedules, Addenda and Exhibits attached to
this Agreement (initially or by way of amendment) are incorporated herein by
reference as if set forth in full.
(k) Notices. All written notices permitted or required to be given
under this Agreement may be personally delivered to the office of the other
party(s), or shipped via a nationally recognized overnight courier service, or
mailed to the office of the other party(s) by Certified United States Mail. Each
notice shall be addressed to the address set forth under the party's signature.
Any notice delivered hereunder will be effective on the date delivered when
delivered personally or by overnight courier, or on the third business day after
mailing if mailed by Certified United States Mail. Either party may, by written
notice to the other via first class mail, change its address for notices.
Page 13
AGREEMENT EXECUTION INSTRUCTIONS:
1. This page must be executed to initiate this Agreement.
2. Each County Schedule must be executed to initiate access to the respective
Counties.
a. Service and/or fee changes are affected by execution of a new County
Schedule.
b. Each County Schedule execution date is to be updated on the County
Schedule Index page.
IN WITNESS WHEREOF, the parties have executed this Exhibit as follows:
Property Insight: Customer:
PROPERTY INSIGHT, LLC ROCKY MOUNTAIN SUPPORT SERVICES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: Phone: (▇▇▇) ▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------- ---------------------------------
Title: Senior Vice President Title: Vice President
Email Address: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ Email Address: ▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
Date: March 4, 2005 Date: March 4, 2005
Page 14
Address for Notices: Address for Notices: [x] Same as above
Property Insight _______________________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ _______________________________________
Attn: President
Phone: _______________________________________
Fax:
Attn:__________________________________
With a copy to:
Phone:_________________________________
Fidelity National Information Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Fax:___________________________________
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Phone:
Fax:
Page 15
