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Exhibit 10.7
INTELLECTUAL PROPERTY CROSS LICENSE AGREEMENT
This INTELLECTUAL PROPERTY CROSS LICENSE AGREEMENT (this
"Agreement"),
dated as of September 27, 2005 (the
"Effective Date"), is entered into by and
between FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware corporation, ("FNF") and
FIDELITY NATIONAL TITLE GROUP, INC., a
Delaware corporation ("FNT"), each a
"Party" and together, the "Parties."
W I T N E S S E T H:
WHEREAS, FNF has the authority and power, or has caused members of
the
FNF Group to authorize and empower FNF, to
deliver the rights herein granted to
FNT, and FNT has the authority and power,
or has caused members of the FNT Group
to authorize and empower FNT, to deliver
the rights herein granted to FNF.
NOW, THEREFORE, in consideration of the premises, and of the
cross
representations, warranties, covenants and
agreements set forth herein, and for
other good and valuable consideration, the
receipt and sufficiency of which are
hereby acknowledged, the Parties hereby
agree as follows:
1.
CERTAIN DEFINITIONS
(a) "Change of
Control" of FNT means any event or circumstance causing FNF
to own or control, directly or indirectly, fifty percent (50%) or
less
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
of
FNT.
(b)
"Competitors" for FNF shall mean those companies set forth on
Schedule
1(a)(i) and for FNT shall mean those companies set forth on
Schedule
1(a)(ii).
(c)
"Confidential Information" has the meaning set forth in Section
8(a).
(d)
"Copyright" means each of the FNF Copyrights and the FNT
Copyrights.
(e) "Dispute"
has the meaning set forth in Section 9(a).
(f) "Fidelity
Mark" has the meaning set forth in Section 3(e).
(g) "FNF
Copyrights" has the meaning set forth in Section 2(b).
(h) "FNF
Group" means FNF, the FNF Subsidiaries and each Person that is
an
Affiliate of FNF, other than FNT and any member of the FNT
Group,
immediately after the Effective Date, and each other Person
that
becomes an Affiliate of FNF after the Effective Date.
(i) "FNF
Intellectual Property" has the meaning set forth in Section
2(f).
(j) "FNF
Marks" has the meaning set forth in Section 2(c).
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(k) "FNF
Patents" has the meaning set forth in Section 2(d).
(l) "FNF Trade
Secrets" has the meaning set forth in Section 2(e).
(m) "FNF
Subsidiary" means the Subsidiaries of FNF, excluding FNT and
the
members of the FNT Group (collectively, the "FNF
Subsidiaries").
(n) "FNT
Copyrights" has the meaning set forth in Section 2(b).
(o) "FNT
Group" means FNT, Subsidiaries of FNT, and each Person that FNT
directly or indirectly controls (within the meaning of the
Securities
Act) immediately after the Effective Date, and each other Person
that
becomes an Affiliate of FNT after the Effective Date.
(p) "FNT
Intellectual Property" has the meaning set forth in Section
2(f).
(q) "FNT
Marks" has the meaning set forth in Section 2(c).
(r) "FNT
Patents" has the meaning set forth in Section 2(d).
(s) "FNT
Subsidiary" means the Subsidiaries of FNT (collectively, the
"FNT
Subsidiaries").
(t) "FNT Trade
Secrets" has the meaning set forth in Section 2(e).
(u) "Granting
Party" has the meaning set forth in Section 2(a).
(v) "Granting
Party Group" means (i) the FNF Group in those instances where
FNF is the Licensor Party and (ii) the FNT Group in those
instances
where FNT is the Licensor Party.
(w)
"Intellectual Property" has the meaning set forth in Section
2(f).
(x)
"Intercompany Agreements" means the following agreements each
executed
on or about the Effective Date, unless otherwise indicated
herein:
(i) this
Intellectual Property Cross License Agreement between FNF
and FNT;
(ii)
the Corporate Services Agreement between FNF and FNT;
(iii) the
Reverse Corporate Services Agreement between FNF and FNT;
(iv)
the Employee Matters Agreement between FNF and FNT;
(v) the Tax
Matters Agreement between FNF and FNT; and
(vi)
any other agreement that would fall within the definition of
"Ancillary Agreements" in the Separation Agreement of even
date herewith, between FNF and FNT, as amended and as may
hereafter be amended from time to time.
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(y) "Licensee
Party" has the meaning set forth in Section 2(a).
(z) "Licensee
Party Group" means (i) the FNF Group in those instances where
FNF is the Licensee Party and (ii) the FNT Group in those
instances
where FNT is the Licensee Party.
(aa) "Mark" means
each of the FNF Marks and the FNT Marks.
(bb) "Master IT
Services Agreement" means the agreement of even date
herewith by and between FNT and Fidelity Information Services,
Inc., an
Arkansas corporation.
(cc) "Party" has the
meaning set forth in the preamble.
(dd) "Patent" means
each of the FNF Patents and the FNT Patents.
(ee) "Permitted
Sublicensee" has the meaning set forth in Section 2(g)(i).
(ff) "Person" means
an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust,
a
joint venture, an unincorporated organization, a governmental
entity or
any department, agency, or political subdivision thereof.
(gg) "Subsidiary"
means, with respect to any specified Person, any
corporation or other legal entity of which such Person 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.
(hh) "Trade Secret"
means each of the FNF Trade Secrets and the FNT Trade
Secrets.
(ii) "Unauthorized
Access" has the meaning set forth in Section 8(b).
2.
RECIPROCAL GRANTS
(a) Each Party
hereto grants hereby certain rights in Intellectual Property
(defined and scheduled below) and Trade Secrets and, with respect
to
such rights, shall be termed the "Granting Party"; with respect to
such
rights, the grantee shall be termed the "Licensee Party." The
following
basic grants shall control each identified type of Intellectual
Property and Trade Secrets, but each grant shall be subject to
any
further conditions adjoining the specific item of Intellectual
Property
as scheduled (for Copyrights on Schedule 2(b), for Marks on
Schedule
2(c), and for Patents on Schedule 2(d)). Where a Party is granted
a
right to sublicense pursuant to this Section 2, any sublicense
granted
pursuant to such right shall comply with Section 2(g) below.
(b) Copyrights. (i)
FNF hereby grants to FNT a non-exclusive, irrevocable,
non-terminable, worldwide, royalty-free license, to use, sell
services
arising from, sublicense, operate, alter, modify, adapt,
perform,
distribute, create derivative works from, display, copy and exploit
any
other rights of ownership now existing or hereafter created
with
respect to (A) the copyrighted materials (including but not limited
to
software) owned by a member of
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the FNF Group and listed or described on Schedule 2(b) hereto or
(B)
materials that (1) are unregistered, (2) are not software or
data
processed by software in connection with the business of FNF Group,
(3)
FNT Group was using prior to the Effective Date and (4) do not
have
substantial commercial value (collectively, A and B are the
"FNF
Copyrights"), subject to the terms and conditions hereof.
(ii) FNT hereby grants to FNF a non-exclusive, irrevocable,
non-terminable, worldwide, royalty-free license, to use, exploit,
sell
services arising from, sublicense, operate, alter, modify,
adapt,
perform, distribute, create derivative works from, display, copy
and
exploit any other rights of ownership now existing or hereafter
created
with respect to (A) the copyrighted materials (including but
not
limited to software) owned by a member of the FNT Group and listed
or
described on Schedule 2(b) hereto or (B) materials that (1) are
unregistered, (2) are not software or data processed by software
in
connection with the business of FNT Group, (3) FNF Group was
using
prior to the Effective Date and (4) do not have substantial
commercial
value (collectively, A and B are the "FNT Copyrights"), subject to
the
terms and conditions hereof.
(c) Marks. (i)
FNF hereby grants to FNT for the term of this Agreement a
non-exclusive, worldwide, revocable, royalty-free license, to
use,
sublicense, display and reproduce the trade and service marks owned
by
a member of the FNF Group and listed on Schedule 2(c) hereto (the
"FNF
Marks"), terminable as provided below, by FNF (and with respect
to
sublicenses to the FNT Group, by FNT) for the goods and services as
set
forth on Schedule 2(c). Notwithstanding the foregoing, one or
more
upper level domain names substantially matching an FNF Mark may
also be
scheduled and licensed hereunder, and shall be licensed, if at
all,
exclusively.
(ii) FNT hereby grants to FNF for the term of this Agreement, a
non-exclusive, world-wide, revocable, royalty-free license, to
use,
sublicense, display and reproduce the trade and service marks owned
by
a member of the FNT Group and listed on Schedule 2(c) hereto (the
"FNT
Marks"), terminable as provided below, by FNT (and with respect
to
sublicenses to the FNF Group, by FNF) for the goods and services as
set
forth on Schedule 2(c). Notwithstanding the foregoing, one or
more
upper level domain names substantially matching an FNT Mark may
also be
scheduled and
licensed hereunder, and shall be licensed, if at all,
exclusively.
(iii) Each license and each sublicense of a Mark shall be
separately
terminable on the following conditions:
Each Licensee Party or sublicensee of a Mark hereunder shall
observe the following quality control standards and
procedures:
A)
Licensee Party shall assure that the nature and
quality of products and services that are marketed,
advertised, sold or serviced using Granting Party
Marks subject to this Agreement will meet or exceed
all applicable governmental and regulatory standards
and requirements and initially shall be of a high
quality consistent with the quality of the products
and services of the Licensee Party as provided by the
Licensee Party (or its sublicensees) prior to the
date hereof,
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and throughout the term hereof, recognizing that
Licensee Party's business shall change and that
regulatory standards and requirements may change from
time to time, its products and services shall
continue to be of a high quality commensurate with
industry standards and with then current regulatory
standards and requirements. Each party acknowledges
that the Licensee Party has maintained the products
and services offered under the Marks at a high
quality and enforced quality control standards
regarding the nature and quality of products and
services that are marketed, advertised, sold or
serviced using Granting Party's Marks prior to the
date hereof. Granting Party may from time to time
request, and Licensee Party agrees to reasonably
provide, samples of marketing materials,
advertisements, and other information regarding
Licensee Party's or sublicensee's products and
services which samples shall be used only for the
purpose of verifying Licensee Party's compliance with
quality control. The parties shall mutually agree
upon and comply with guidelines for reasonable usage
of the Marks.
B) All
goodwill arising from License Party's use, or use
by a sublicense, of Granting Party Marks shall inure
solely to the benefit of the Granting Party and
neither during, nor after, termination of this
Agreement shall a Licensee Party or any sublicensee
assert any claim to such goodwill. Additionally, each
such Licensee Party and sublicensee agrees not to
take any action that would be detrimental to the
goodwill associated with such Marks.
If a Granting Party of a Mark shall give written notice to a
Licensee Party of the Licensee Party's material failure (or
the material failure of any of its sublicensees) to maintain
or observe the requisite quality controls set forth above and
if, within sixty (60) days of Licensee Party's receipt of such
notice, (i) the failure has not been cured or (ii) a
reasonable plan of
cure has not been presented by the Licensee
Party to the Granting Party and the Licensee Party (or
sublicensee) of the Mark in breach has not begun to implement
such plan, then the Granting Party may suspend all rights for
use of said Mark by the relevant Licensee Party or sublicensee
until such time as such failure is cured. If a plan of cure is
implemented and has not resulted in a cure within one (1) year
of notice of material failure, the license of such Mark to
such user shall terminate. If a license to a Licensee Party
sublicensee is so terminated, such Licensee Party may not
issue a new sublicense for a Mark to such sublicensee without
prior written consent of the Granting Party.
(d) Patents.
(i) FNT hereby grants to FNF an irrevocable, non-terminable,
non-exclusive, worldwide, royalty-free license, to use,
sublicense,
make, create improvements of, market, sell, offer for sale, and
exploit
any other rights of ownership now existing or hereafter created
with
respect to goods and services using or arising from processes
or
inventions subject to patents owned by a member of the FNT Group
and
listed on Schedule 2(d) hereto (the "FNT Patents") subject to the
terms
and conditions hereof.
(ii) FNF hereby grants to FNT an irrevocable, non-terminable,
non-exclusive, worldwide, royalty-free license, to use,
sublicense,
make, create improvements of, market, sell and
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exploit any other rights of ownership now existing or hereafter
created
with respect to goods and services using or arising from
processes
subject to patents owned by a member of the FNF Group and listed
on
Schedule 2(d) hereto (the "FNF Patents") subject to the terms
and
conditions hereof.
(e) Trade
Secrets/Know-How. (i) FNT hereby grants to FNF an irrevocable,
non-terminable (except as set forth herein), non-exclusive,
worldwide,
royalty-free license, to use, sublicense, make, create improvements
of,
market, sell and exploit any other rights of ownership now existing
or
hereafter created with respect to goods and services using or
arising
from know-how or trade secrets owned by a member of the FNT Group
and
used by a member of the FNF Group prior to the Effective Date (the
"FNT
Trade Secrets"), subject to the terms and conditions hereof.
(ii) FNF hereby grants to FNT an irrevocable, non-terminable
(except as
set forth herein), non-exclusive, worldwide, royalty-free license,
to
use, sublicense, make, create improvements of, market, sell and
exploit
any other rights of ownership now existing or hereafter created
with
respect to goods and services using or arising from trade secrets
or
know-how owned by a member of the FNF Group and used by a member of
the
FNT Group prior to the Effective Date (the "FNF Trade
Secrets"),
subject to the terms and conditions hereof.
(f)
Intellectual Property. The Patents, Marks and Copyrights shall
be
collectively termed the "Intellectual Property" and the
Intellectual
Property owned by FNF or FNT shall be termed, respectively, the
"FNF
Intellectual Property" and the "FNT Intellectual Property."
(g) Sublicense
Limitations. Each grant hereunder is subject to the right of
sublicense (without further consent from the Granting Party) in
accordance with the following limitations:
(i) Sublicenses
may be granted hereunder by a Licensee Party solely to
members of the Licensee Party Group, effective upon written notice
to
the Granting Party, which notice discloses the specific
Intellectual
Property or Trade Secret that has been sublicensed and the name
and
address of the sublicensee. A Licensee Party, who prior to the
Effective Date, granted or whose members of the Licensee Party
Group
granted sublicenses of Intellectual Property outside of the
Licensee
Party Group to their respective end-user customers and/or
resellers
(which resellers are not Competitors of the Granting Party) as part
of
the normal conduct of their respective businesses or who can show
that
it or members of the Licensee Party Group were planning within
the
first year after the Effective Date to grant sublicenses of
Intellectual Property to their respective end-user customers
and/or
resellers (which resellers are not Competitors of the Granting
Party)
as part of the normal conduct of their respective businesses (all
such
end-users and resellers are, collectively, the "Permitted
Sublicensees"), may grant or permit sublicenses within the
Licensee
Party Group to grant further sublicenses of such Intellectual
Property
as had previously been so granted or as had been planned to be
so
granted within the first year after the Effective Date as part of
such
normal
conduct of business to Permitted Sublicensees upon written
notice to the Granting Party, which notice shall disclose the
specific
Intellectual Property that has been sublicensed and the name
and
address of the
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Permitted Sublicensee. A Licensee Party shall not grant
sublicenses,
directly or indirectly, of the Intellectual Property of the
Granting
Party to a Competitor of the Granting Party; provided that the
Licensee
Party can grant a sublicense to a Competitor of a Granting Party
for
Copyrights or Patents of the Granting Party solely for the benefit
of
Licensee Party's internal business or the business of the members
of
the Licensee Party Group. In no event shall a Licensee Party
grant
sublicenses, directly or indirectly, of the Trade Secrets of
the
Granting Party to a Competitor of the Granting Party or
otherwise
provide access to the Trade Secrets of the Granting Party to a
Competitor of the Granting Party.
(ii) Except as otherwise set forth in Schedule 2(b), (c), or
(d)
hereto, which may be amended in accordance with Section 2(h), or
as
permitted by Section 2(g)(i), a Licensee Party may grant
sublicenses to
any Person who is not in the Licensee Party Group only upon
prior
written consent of the Granting Party. Except as otherwise set
forth in
Schedule 2(b), (c) or (d) hereto, which may be amended in
accordance
with Section 2(h), or as permitted by Section 2(g)(i), if a
Licensee
Party proposes to sublicense any Intellectual Property licensed to
it
hereunder to a Person outside its Group and who is a Permitted
Sublicensee, the Granting Party shall consider such proposal in
good
faith and may approve same on such conditions as it deems
appropriate
in its reasonable business judgment.
(iii) The Licensee Party agrees to impose, on each of its
sublicensees,
obligations to comply with the terms of this Agreement,
including
without limitation, obligations regarding confidentiality and
the
return and/or destruction of Trade Secrets and related documents
and
materials pursuant to Section 8 hereof and shall not permit any
sublicensee to grant further sublicenses without the prior
written
approval of the Granting Party.
(iv) Any sublicense of a Copyright or Patent shall include
provisions
to enable the sublicensee's compliance with Section 3(d) below.
(v) A Licensee Party (A) shall be and remain liable to the
Granting
Party for each sublicensee of the Licensee Party and any breach of
the
terms of the applicable sublicense and this Agreement and (B) shall
use
its commercially reasonable best efforts to minimize any damage
(current and prospective) done to the Granting Party as a result of
any
such breach.
(vi) Any other limitations set forth in Schedule 2(b), (c) and
(d)
shall apply with respect to all sublicenses.
(h) Schedule
Changes. At any time prior to six months after the Change of
Control of FNT, Schedules 2(b), (c) and (d) shall be amended from
time
to time, by one party giving written notice to the other, to
add,
modify or delete (i) any FNF Intellectual Property that is a Patent
or
Copyright (other than data and software with substantial
commercial
value) that any member of the FNT Group was using prior to becoming
an
FNT Subsidiary and which is necessary to the business of such
member
unless such addition would be prohibited by any enforceable
obligation
of FNF prior to the date hereof, in which event
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the parties will take all commercially reasonable efforts to enable
the
addition, in each case with such addition having retroactive effect
to
the Effective Date, and (ii) any FNT Intellectual Property that is
a
Patent or Copyright (other than data and software with
substantial
commercial value) that any member of the FNF Group was using prior
to
the Effective Date which is necessary to the business of such
member,
unless such addition would be prohibited by any other
enforceable
obligation of FNT prior to the date hereof, in which event the
parties
will take all commercially reasonable efforts to enable the
addition,
in each case with such addition having retroactive effect to
the
Effective Date.
(i) If, within
one year from the Effective Date, a Party identifies a
copyright, patent or mark owned by a member of the other Party's
Group
prior to the Effective Date and not scheduled hereunder which
would
otherwise qualify as Intellectual Property, but which such Party
was
not using before the Effective Date, which it (or a member of
its
Group) deems useful in its business, the Party which owns (or a
member
of whose Group owns) such item of intellectual property agrees
to
negotiate in good faith to arrive at reasonable commercial terms of
a
license but, for the avoidance of doubt, is not bound to conclude
a
license.
(j) In the
event of a conflict or inconsistency between the terms of this
Agreement and any other Intercompany Agreement concerning or
implicating the licensing of Patents, Copyrights or Trade Secrets,
the
terms of such Intercompany Agreement will govern. In the event of
a
conflict or inconsistency between the terms of this Agreement and
any
other Intercompany Agreement entered between a member of FNF Group
and
FNT Group as of or within six months following the Effective
Date
concerning the licensing of Marks, the terms of this Agreement
will
govern.
3.
COPIES; DERIVATIVE WORKS; IMPROVEMENTS
(a) In
addition to any copies of Intellectual Property that a Licensee
Party or its sublicensee may make as otherwise permitted hereunder,
a
Licensee Party or its sublicensee may make such number of copies
of
Intellectual Property as reasonably deemed necessary by it for
backup
or disaster recovery. No Licensee Party shall remove, obscure
or
materially vary (or permit its sublicensee t
