PROPERTY INSIGHT
Exhibit 99.35
PROPERTY INSIGHT
This
Agreement is effective as of June 5, 2007 between Property
Insight LLC and Fidelity National Default Solutions, Inc, and is being executed for the purpose of providing search packages 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. | SERVICES |
(a) DESCRIPTION. Property Insight shall perform the following:
Real property searching as described in Appendix “A” hereto attached. Delivery of searched
results electronically (to site or printer (if ordered) designated by customer). Property Insight
will return those open order requests that do not qualify to be searched, or examined by Property
Insight (Commercial properties and properties located within a “Rancho” or have not been insured in
the current plant time will be returned to customer for handling without charge) within 1 hour of
receipt. The return will be made by e-mail notification to a designated employee of the Customer.
Property Insight’s business hours are 6:30am to 3:30pm Pacific Standard Time. Any order
opened after 3:00pm will be processed as being opened the following business day.
(b) CUSTOMER’S OBLIGATION. Customer must have a plant access agreement with Property
Insight in any county where a request is being made. Customer must have an image access agreement
in any county where a request is being made; Customer agrees to work with their data provider on
establishing connectivity to Property Insight, if necessary. Customer must provide Property
Insight with a form acceptable to both Customer and Property Insight to open an order; the form can
be delivered to Property Insight via, facsimile, or automatic electronic delivery in PDF or TIFF
formats to a designated FTP site or e-mail. Customer must provide a designated electronic site for
delivery of search results and preliminary report from Property Insight. Customer must provide
training on Customer’s production system if Property Insight is populating the Customers production
system. Customer must provide a “write-up” manual or “code book” and any searching and/or
examining guidelines unique to its preliminary report, for preparation within Customer’s production
system. Customer will provide any and all underwriting guidelines specific to their preliminary
report preparation. Customer will provide on-going feedback regarding underwriting changes and
product preparation modifications. Customer will provide on-going feedback regarding accuracy,
speed and format of completed searches and products provided by Property Insight.
| 2. | LIABILITY |
(a) WARRANTY EXCLUSION AND LIMITATION OF DAMAGE. PROPERTY INSIGHT MAKES NO WARRANTIES
OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE ACCURACY OR COMPLETENESS OF THE SEARCH
PACKAGE. Customer agrees that in no event shall Property Insight be liable for any lost profits or
for any special, consequential or exemplary damages, even it Property Insight has been advised of
the possibility of such damages. Upon being advised of an error by Property Insight from the
Customer, Property Insight will either fix the error or re-process the search or product at no
charge. Customer agrees that in no event shall Properly Insight 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) DISCLAIMER OF LIABILITIES. Property Insight and Customer agree that no other
person, firm or corporation not a party to this Agreement has or shall acquire any rights under
this Agreement. Property Insight and Customer also agree that Property Insight assumes no
liability, and shall not be held liable to Customer, or to Customer’s customers or insured’s, or to
any other person to whom Customer may furnish any title policy, binder, guarantee, endorsement or
other title assurance, or to any property owner or party to any insured deed of trust, except as
stated at Paragraph 3(a).
(c) It is understood and agreed between the parties that Property Insight will rely, and shall
be entitled to rely, on the accuracy of the information provided by Customer. It is further
understood and agreed between the parties that Property Insight will make no investigation into and
shall have no responsibility for the propriety, or lack thereof, of issuing the search packages,
commitments, reports, policies or guarantees.
| 3. | USE OF SEARCH PACKAGES |
Services furnished to Customer under Agreement are to be used by Customer solely for the
purpose of policy distribution for specific real estate transactions on specific parcels of real
property involved in Customer’s title orders.
| 4. | FEES AND PAYMENT |
(a) FEES. Customer will pay Property Insight the fees for the Services specified in
the County Schedules. 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 or 3% whichever is greater, (ii) monthly where the
cost to acquire documents or other media necessary to create or provide the service increases.
(b) 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 customer
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provided criteria (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 thirty (30) days after the sum has become due and payable. To
cure that default, the sum then due, plus a late payment fee equal to ten percent (10%) of the sum
then due (or the maximum rate or amount allowed by applicable law if less), must be paid to
Property Insight.
| 5. | SYSTEMS CHANGES |
Property Insight may in the future develop or acquire systems enhancements that may provide
for additional services. These systems enhancements may provide Customer with a more efficient
system. If and when those systems enhancements are available, Property Insight and Customer will
enter into good faith negotiations to arrive at additional charges for Customer’s use of that
enhancement.
| 6. | DEFAULT |
(a) TERMINATION ON DEFAULT. If either party does not faithfully perform all of the
terms and provision of the Agreement or in any manner fails, refuses or neglects to perform its
obligations under this Agreement and does not cure that default within thirty (30) days after
receipt of written notice specifying the default, then this Agreement may be terminated by the
party not in default.
(b) NONEXCLUSIVE REMEDIES. Any right of termination is in addition to any other
remedy provided by law or equity.
(c) NONWAIVER. Failure by either party to declare a termination of this Agreement for
the breach of any one or more of the provisions contained in the Agreement or a failure of either
party to take action under the provisions of this Agreement for a breach, will never be construed
as a waiver of the breach or any subsequent breach of the same or other provision of this
Agreement. On the contrary, either party may at any time exercise any or all of its rights upon
breach, in accordance with applicable provisions of this Agreement.
(d) TERMINATION ON DEFAULT BY CUSTOMER. In the event of a default by Customer for any
reason, Property Insight will be under no further obligation to continue to produce products until
such time as said default is cured.
| 7. | CONSTRUCTION AND PERFORMANCE |
This Agreement shall not be construed against the party preparing it, but shall be construed
as if all parties prepared this Agreement and in accordance with the laws of the State of
California. The headings of each numbered paragraph are to assist in reference only and are not be
used in the interpretation of the paragraphs.
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| 8. | ARBITRATION |
If any dispute arises between the parties to this Agreement or if either party institutes an
action against the other party for breach of this Agreement, at either party’s option, all issues
shall be resolved and decided through arbitration. Said 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 arbiter mutually agreed
upon by both parties. If the parties have not agreed to a mutually acceptable arbitrator within
thirty (30) days of the date of the notice to arbitrate the dispute shall be resolved and decided
by a panel of three arbitrators as follows: one arbitrator chosen by each of the parties and one
selected by the AAA from its regularly maintained list of commercial arbitrators. The arbitrator
shall conduct a single hearing for the purpose of receiving evidence and shall render a decision
with thirty (30) days of the conclusion of the hearing. The decision of the arbitrator shall be
binding and final.
| 9. | SAVINGS CLAUSE |
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 jurors, each and all of the remaining terms, provisions, promises, covenants and
conditions of this Agreements 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 bylaw.
| 10. | 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.
| 11. | 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 underwriting methods, as to fees or
premiums to be charged by them to their customers, or as to any other
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processes or practices of either party except as otherwise stated or prescribed by any Issuing
Agency Agreement entered into between the parties or, if applicable, their affiliates.
| 12. | 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.
| 13. | 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.
| 14. | 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.
| 15. | 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.
| 16. | 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.
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| 17. | 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.
| 18. | 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.
IN WITNESS WHEREOF, the parties have executed This Agreement as of the Effective Date below.
| Property Insight | Customer | |
Property Insight, a California Limited Liability
Corporation |
Fidelity National Default Solutions, Inc. | |
| Customer | ||
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By (Signature)
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By (Signature) | |
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Print Name
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Print Name | |
President |
Vice President | |
Title
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Title | |
June 5, 2007 |
May 1, 2007 | |
Effective Date
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Date | |
Mailing Address For Notices:
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Address For Notices: [x] Same As Above | |
PROPERTY INSIGHT ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: VP Sales Phone (▇▇▇) ▇▇▇-▇▇▇▇ Fax (▇▇▇) ▇▇▇-▇▇▇▇ |
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