SOFTPRO SOFTWARE LICENSE AGREEMENT

 

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                                                                   Exhibit 10.17

 

                                                                        NOVATION

 

                       SOFTPRO SOFTWARE LICENSE AGREEMENT

 

This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of September 27,

2005 ("Effective Date") and is made by and between FNIS SoftPro, a division of

FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., with its principal office at 333

East Six Forks Road, Raleigh, North Carolina, 27609 ("SoftPro"), and FIDELITY

NATIONAL TITLE GROUP, INC., with its principal offices at 601 Riverside Avenue

Jacksonville, FL 32204 ("Client" or "FNT").

 

 

        WHEREAS, Fidelity National Information Services, Inc. ("FIS"), the

parent company of SoftPro, previously entered into a certain Stock Purchase

Agreement, dated as of December 23, 2004 (the "Stock Purchase Agreement"), with

Fidelity National Financial, Inc., a Delaware corporation ("FNF"), pursuant to

which certain purchasers (the "Purchasers") purchased from FIS 50,000,000 shares

of FIS' common stock, subject to the terms and conditions of the Stock Purchase

Agreement; and

 

        WHEREAS, a condition to the closing of the transactions contemplated by

the Stock Purchase Agreement required that FIS and FNF enter into certain

Intercompany Agreements (as defined in the Stock Purchase Agreement), and that

the form and substance of such Intercompany Agreements be satisfactory to the

Parties and the representatives of the Purchasers; and

 

        WHEREAS, SoftPro previously entered into a SoftPro Software License

Agreement dated as of March 4, 2005 (the "FNF Agreement") with FNF, as the

parent company of FNT and its subsidiaries, with respect to the use of certain

software and the provision of certain services, as more fully described herein;

and

 

        WHEREAS, pursuant to an Assignment and Assumption Agreement of even date

herewith between FNF and FNT, FNT has assumed, with the consent of FIS and

SoftPro, all of FNF's rights and obligations under the FNF Agreement; and

 

        WHEREAS, SoftPro and FNT wish to enter into a novation of the rights and

obligations under the FNF Agreement, as assumed by and assigned to FNT, so that

FNT is the clear party in interest with respect to the license and services to

be provided by SoftPro, as more particularly described herein;

 

        NOW THEREFORE, in consideration of the premises, and of the

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 hereto agree as follows:

 

 

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1.       DEFINITIONS.

 

        As used in this Agreement:

 

        1.1      "ASSISTANCE" shall mean installation, conversion planning,

                conversion, consulting assistance, workshops, training or

                education classes performed by SoftPro, or other functions

                mutually agreed to be "Assistance" by Client and SoftPro.

 

         1.2      "BASE MODIFICATION" shall mean any Modification which SoftPro,

                in its sole discretion, has incorporated into the base version

                of the SoftPro Software which SoftPro makes generally available

                to its customers.

 

        1.3      "CLIENT SERVER SOFTWARE" shall mean those client-server based

                applications set forth in Section 1.3 of Exhibit A hereto.

 

        1.4      "COMPETITOR" shall mean a natural or legal person offering a

                 product that competes with SoftPro Software.

 

        1.5      "CUSTOM MODIFICATION" shall mean any Modification to the SoftPro

                Software other than a Base Modification.

 

        1.6      "DAYS" shall mean calendar days, unless otherwise specified.

 

        1.7      "DEFECT" shall mean any failure, malfunction, defect or

                non-conformity in the SoftPro Software that prevents the SoftPro

                Software in any material respect from operating and performing

                 in accordance with the Documentation.

 

        1.8      "DOCUMENTATION" shall mean SoftPro's standard operating

                instructions relating to the SoftPro Software, consisting of one

                copy of the object code form of the SoftPro Software; a copy of

                manuals consisting of instructions and procedures for systems

                and operations personnel and end users of SoftPro Software, and

                related documentation which SoftPro makes available to its

                 customers in general. SoftPro will deliver the Documentation to

                Client in paper form, on CD ROM or electronically, at SoftPro's

                discretion and in accordance with SoftPro's then-current

                practices for such delivery (except that SoftPro Software shall

                be delivered on machine readable media). Client acknowledges

                that not all items of Documentation are available in all forms

                of media. SoftPro shall have the right to change the medium upon

                which the Documentation is delivered to Client without notice to

                Client. Upon electronic delivery of Documentation, any

                obligation of SoftPro to deliver multiple numbers of copies of

                such Documentation to Client shall have no further force or

                effect.

 

        1.9      "ESCALATION PROCEDURES" shall mean the procedures set forth in

                Section 10.3 of this Agreement.

 

        1.10     "INSTALLATION SITE" shall mean each location at which the

                SoftPro Software is installed and which is either (i) owned or

                controlled by Client, (ii) owned or controlled by one or more

                subsidiaries of FIS that are involved in the operation of

 

 

 

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                the LSI business for FIS, or (iii) owned or controlled by a

                Client contractor (who is not a Competitor and who has executed

                 a nondisclosure agreement consistent with the terms of this

                Agreement) providing use of systems to Client, and which is

                located in the United States. The initial Installation Site

                address is listed in Section 2 of Exhibit A. Client may update

                the list of Installation Sites from time to time upon thirty

                (30) Days prior written notice to SoftPro.

 

        1.11     "MAINTENANCE" shall mean the services described in Exhibit B

                 hereto.

 

        1.12     "MAINTENANCE RELEASE" shall mean the current Release of the

                SoftPro Software and the immediately prior Release (provided

                that such Releases have been made available to Client), and

                 shall also include, at any given time, each Release delivered to

                Client within the prior two years.

 

        1.13     "MODIFICATION" shall mean any customization, enhancement,

                modification or change made to the SoftPro Software authored by

                or for SoftPro under this Agreement.

 

        1.14     "MSA" shall mean the Master Information Technology Services

                Agreement by and between Fidelity Information Services, Inc. and

                Fidelity National Title Group, Inc. entered into as of the date

                hereof, as amended, supplemented or modified from time to time.

 

        1.15     "PC SOFTWARE" shall mean those personal computer-based

                applications developed by SoftPro that are set forth in Section

                1.2 of Exhibit A.

 

        1.16     "PROPRIETARY INFORMATION" shall mean all information disclosed

                by or for Client or SoftPro to the other during the negotiations

                hereof and/or learned by reason of the relationship established

                hereunder or pursuant hereto, including, without limitation, the

                SoftPro Software, Documentation, Releases, Modifications and all

                information, data and designs related thereto. Information

                relating to each party's business, plans, affiliates or

                customers shall also be deemed "Proprietary Information" for

                purposes of the Agreement. "Proprietary Information" shall also

                include all "non-public personal information" as defined in

                Title V of the Gramm-Leach-Bliley Act (15 U.S.C. Section 6801,

                et seq.) and the implementing regulations thereunder

                (collectively, the "GLB Act"), as the same may be amended from

                time to time, that SoftPro receives from or at the direction of

                Client and that concerns any of Client's "customers" and/or

                "consumers" (as defined in the GLB Act).

 

        1.17     "RELEASE" shall mean the Base Modifications, and other new

                versions, corrections, revisions, updates, modifications and

                enhancements to the SoftPro Software and related Documentation

                 that SoftPro makes commercially available, without additional

                charge, to licensees of the SoftPro Software to which SoftPro is

                providing Maintenance. A Release does not include any new or

                replacement products.

 

 

 

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        1.18     "SERVER" shall mean a logical server that may include one (1) or

                more physical servers.

 

        1.19     "SOFTPRO AFFILIATE" shall mean any majority-owned, direct or

                indirect subsidiary of SoftPro, as from time to time

                constituted.

 

        1.20     "SOFTPRO SOFTWARE" shall mean the object code and/or Source Code

                of any program or part of a program as described in Exhibit A

                licensed hereunder to Client. SoftPro Software includes all Base

                Modifications, all Modifications authored by or for SoftPro, and

                all Releases issued during the term of Maintenance under this

                 Agreement.

 

        1.21     "SOURCE CODE" of SoftPro Software shall mean a copy of the

                source code (or comparable high level coding) for the SoftPro

                Software, including any annotations therein, certified by

                 SoftPro to Client, upon each delivery to Client, as a complete

                and accurate copy of source code corresponding to the SoftPro

                Software as last delivered or otherwise made available by

                SoftPro (whether in pieces or in an integrated whole).

 

        1.22     "THIRD PARTY SOFTWARE" shall mean those third party applications

                provided by SoftPro that are set forth in Section 1.4 of Exhibit

                A.

 

        1.23     "USE LIMITATIONS" shall mean the use by Client of the Client

                Server Software simultaneously on no more than the number of

                Workstations licensed herein.

 

        1.24     "WORKSTATION" shall mean any personal computer or computer

                terminal on which use of Client Server Software is authorized.

 

2.       GRANT OF LICENSE.

 

        2.1      GRANT. Subject to Client's full payment, as due, of fees listed

                in Exhibit C, SoftPro hereby grants to Client, and Client

                accepts from SoftPro, a world-wide nonexclusive, perpetual,

                irrevocable right and object code license (except as otherwise

                provided for in Section 3 below) to use the SoftPro Software and

                Documentation at the Installation Site(s), subject to the

                restrictions and obligations set forth herein.

 

        2.2      DELIVERY. Client acknowledges and agrees that it has received,

                prior to the Effective Date, delivery of the SoftPro Software in

                object code form and the Documentation.

 

3.       SOURCE CODE DELIVERY

 

        3.1      DUTY TO DELIVER. Under the circumstances listed in Section 3.2

                below, solely for purposes of integration, maintenance,

                 modification and enhancement of Client's installation(s) of

                SoftPro Software, SoftPro shall promptly deliver to Client a

                complete copy of Source Code, which shall be subject to all of

                the license terms and restrictions applicable to the SoftPro

                Software.

 

 

 

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        3.2      CONDITIONS. SoftPro's duty of delivery of Source Code as

                described above shall be immediately due and enforceable in

                equity upon any of these circumstances:

 

                (a)      SoftPro has given notice to Client under terms of

                        Maintenance that SoftPro shall cease, or SoftPro has

                        ceased, (i) providing Maintenance generally or (ii)

                        supporting any part of SoftPro Software, and in the

                        event of notice of future termination, such termination

                        (whenever notice is given) shall be effective within

                        twelve months.

 

                (b)      SoftPro shall apply for or consent to the appointment of

                        a receiver, trustee, or liquidator of all or a

                        substantial part of its assets, file a voluntary

                        petition in bankruptcy, make a general assignment for

                        the benefit of creditors, file a petition or an answer

                        seeking reorganization or arrangement with creditors or

                        take advantage of any insolvency law, or if an order,

                        judgment or decree shall be entered by any court of

                        competent jurisdiction, on the application of a

                        creditor, adjudicating SoftPro as bankrupt or insolvent

                        or approving a petition seeking reorganization of

                        SoftPro or appointing a receiver, trustee, or liquidator

                        of SoftPro or of all or substantial part of its assets,

                        and such order, judgment or decree shall continue

                        unstayed and in effect for any period of thirty (30)

                        consecutive Days.

 

                (c)      SoftPro shall be in breach of any material covenant

                        herein or under Maintenance (or of any Development

                        Services SOW under the MSA) which, following notice of

                        breach in reasonable detail from Client, is not cured

                        within thirty (30) Days. To the extent the breach

                        relates to Maintenance on a specific module or separable

                        component of SoftPro Software, the duty of Source Code

                        delivery shall be limited to the Source Code for such

                        specific module or separable component.

 

                (d)      Client shall have requested development or integration

                        services with respect to SoftPro Software which SoftPro

                        is unable or unwilling to provide or as to which the

                        parties cannot timely come to commercial terms.

 

                        (i)      To the extent the integration or development

                                relates to a specific module or separable

                                component of SoftPro Software, the duty of

                                Source Code delivery shall be limited to the

                                 Source Code for such specific module or

                                separable component.

 

                        (ii)     In the event of delivery of Source Code by

                                SoftPro under this subsection (d), upon Client's

                                completion of its development or integration

                                effort, equating generally to the same scope of

                                work that SoftPro was requested to perform but

                                 did not perform, it will provide to SoftPro a

                                copy of the source code for the development or

                                enhancement, including any annotations therein,

                                 certifying same as complete and accurate and,

                                without further formality, SoftPro

 

 

 

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                                shall be deemed granted a license to use that

                                 source code developed by Client or its

                                non-Competitor contractors, solely for

                                maintenance or further development of the

                                SoftPro Software as implemented for Client and

                                for no other use or beneficiary.

 

                        (iii)    Six (6) months following the delivery by Client

                                to SoftPro of source code for Client's

                                 developments or enhancements under Section

                                3.2(d)(ii), SoftPro may request that Client

                                certify, and Client will promptly certify to

                                SoftPro, that Client has destroyed all copies of

                                (x) Source Code delivered to it by SoftPro

                                3.2(d) and (y) all copies of the source code for

                                Client's development or enhancement - except two

                                hard copy prints of source code for Client's

                                development or enhancement for proof of

                                authorship.

 

                        (iv)     Client's right to obtain access to Source Code

                                pursuant to this Section 3.2(d) may be invoked

                                at any time and from time to time, regardless of

                                the continuity of Maintenance.

 

4.       SOFTWARE USE RESTRICTIONS.

 

        4.1      RESTRICTIONS ON SOFTPRO SOFTWARE.

 

                (a)      Client may not use the SoftPro Software in a service

                        bureau or in a time share arrangement.

 

                 (b)      Client may not sell, lease, assign, transfer, distribute

                        or sublicense the SoftPro Software or Documentation, to

                        any party that is not a (direct or indirect) subsidiary

                        of Client except as set forth in Schedule 4.1(b) hereto

                        and except that Client may sublicense the SoftPro

                        Software to one or more subsidiaries of FIS that are

                        involved in the operation of the LSI business for FIS.

                        Client may not sell, lease, assign, transfer, distribute

                        or sublicense the Source Code to any person or entity at

                        any time, except that Client may sublicense the Source

                        Code to a direct or indirect subsidiary of Client as

                        necessary to exercise Client's rights to modify and

                        create derivative works of the SoftPro Software and

                         Documentation.

 

                (c)      Client shall use SoftPro Software subject to the Use

                        Limitations.

 

                (d)      Client will not make copies, or similar versions of the

                        SoftPro Software or any part thereof without the prior

                        written consent of SoftPro, except in the process of

                        contemplated use, for administrative, archival or

                        disaster recovery backup, and as expressly provided

                        otherwise herein.

 

                (e)      Client may not provide copies of the SoftPro Software to

                        any person, firm, or corporation not permitted hereunder

                        except as permitted under Sections 4.1(b) and (d) above,

                        and except as to Client's non-Competitor contractors or

                        subcontractors who have executed nondisclosure terms

                        consistent with the confidentiality terms herein.

 

 

 

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                (f)      Client shall not allow any third party to use or have

                        access to the SoftPro Software for any purpose without

                        SoftPro's prior written consent except as permitted

                        under Sections 4.1(b) and (d) above, and except as to

                        Client's non-Competitor contractors or subcontractors

                        who have executed nondisclosure terms consistent with

                        the confidentiality terms herein.

 

                (g)      Client agrees not to disclose, decompile, disassemble or

                        reverse engineer the SoftPro Software.

 

        4.2      ADDITIONAL RESTRICTIONS ON PC SOFTWARE.

 

                (a)      Except as specifically set forth herein, all other

                        restrictions on use, copying or disclosure of the

                        SoftPro Software and Client's agreement to maintain the

                        confidentiality thereof shall apply to the PC Software

                        and its Documentation.

 

                (b)      Client may not modify the PC Software (although SoftPro

                        may do so on Client's behalf.)

 

5.       TERM; TERMINATION

 

        5.1      The term of license shall be perpetual subject to termination in

                accordance with the terms herein.

 

        5.2      Client may terminate the license for convenience upon no less

                 than ninety (90) days prior written notice to the other.

 

        5.3      A license enjoyed by a direct or indirect subsidiary of Client

                shall terminate without further formality upon the six month

                anniversary date after such entity's ceasing to be a subsidiary

                of Client. Client shall cause such subsidiary to agree to

                migrate its data off the SoftPro Software and on to an

                alternative product during the above described six month period.

                In any event, if the subsidiary becomes a subsidiary of a

                Competitor, the license to the subsidiary shall terminate

                immediately.

 

        5.4      In the event Client or a Client subsidiary discloses any of the

                SoftPro Software or any material part of the Documentation to a

                Competitor, then SoftPro upon thirty (30) days prior written

                notice to Client, may terminate the license with respect to that

                 portion of relating to the SoftPro Software and Documentation

                provided to such competitor if Client on its own does not (or if

                Client does not cause its subsidiary to) discontinue disclosure

                of the SoftPro Software and Documentation to such Competitor

                within thirty days following Client's receipt of SoftPro'

                written notice. Any such termination shall be effective upon the

                expiration of the cure period. The foregoing is intended to

                apply only to the remedy of termination. SoftPro shall retain

                the right to pursue any other remedies in the event Client or

                its Subsidiary makes an unauthorized disclosure to a Competitor,

                including injunctive relief or recovery of damages, and,

                depending on the nature of the

 

 

 

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                disclosure, requesting that Client undertake other measures in

                addition to simply discontinuing disclosure to the Competitor.

 

        5.5      In the event of termination of the license for any reason,

                Client and/or its subsidiary, as applicable, shall promptly

                 cease all use of the relevant SoftPro Software, delete from its

                systems all copies of the relevant SoftPro Software, and within

                thirty (30) days of termination, return to SoftPro all tangible

                copies of the relevant SoftPro Software, together with

                certification that is has ceased such use, deleted such copies

                and returned such tangible copies as required hereunder.

 

        5.6      Each party acknowledges and agrees that, in the event of

                Client's breach or threatened breach or any provision of

                Sections 4, 5.3, 5.4, 5.5 or 7, SoftPro shall have no adequate

                remedy in damages and notwithstanding the dispute resolution

                provisions in Section 11 hereof, is entitled to seek an

                injunction to prevent such breach or threatened breach;

                provided, however, 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.

 

        5.7      Licenses purchased pursuant to the option in Schedule 4.1(b)

                shall survive in accordance with their terms.

 

6.       INTELLECTUAL PROPERTY RIGHTS.

 

        6.1      OWNERSHIP OF SOFTPRO SOFTWARE AND DOCUMENTATION. From the date

                the SoftPro Software and Documentation is first disclosed to

                Client, and at all times thereafter, as between the parties,

                SoftPro and its licensors shall be the sole and exclusive owners

                of all right, title, and interest in and to the SoftPro

                Software, Documentation and all Modifications, including,

                without limitation, all intellectual property and other rights

                related thereto. The parties acknowledge that this Agreement in

                no way limits or restricts SoftPro and the SoftPro Affiliates

                 from developing or marketing on their own or for any third party

                in the United States or any other country, the SoftPro Software,

                Documentation or Modifications, or any similar software

                (including, but not limited to, any modification, enhancement,

                interface, upgrade, change and all software, source code,

                blueprints, diagrams, flow charts, specifications, functional

                descriptions or training materials relating thereto) without

                payment of any compensation to Client, or any notice to Client.

 

        6.2      DEVELOPMENT SERVICES. Client may from time to time wish to

                augment the SoftPro product with additional functionality or

                utility, or to integrate it with Client systems from other

                sources, and for such purposes may request the provision of

                development services from SoftPro pursuant to a statement of

                work under the MSA (a "SOW").

 

        6.3      CONFLICT WITH MSA. Title to any SoftPro work product developed

                under the MSA shall be determined by the MSA notwithstanding any

                conflicting terms herein.

 

 

 

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7.       CONFIDENTIALITY.

 

        7.1      CONFIDENTIALITY OBLIGATION. Proprietary Information (i) shall be

                deemed the property of the disclosing party (or the party for

                whom such data was collected or processed, if any), (ii) shall

                be used solely for the purposes of administering and otherwise

                implementing the terms of this Agreement and any ancillary

                agreements, and (iii) shall be protected by the receiving party

                in accordance with the terms of this Section 7.

 

        7.2      NON-DISCLOSURE COVENANT. Except as set forth in this Section,

                neither party shall disclose the Proprietary Information of the

                other party in whole or in part, including derivations, to any

                third party. If the parties agree to a specific nondisclosure

                period for a specific document, the disclosing party shall mark

                the document with that nondisclosure period. In the absence of a

                specific period, the duty of confidentiality for (a) SoftPro

                Software (except pursuant to Schedule 4.1(b),) Source Code and

                related Documentation shall extend in perpetuity and (b) with

                respect to any other Proprietary Information shall extend for a

                period of five (5) years from disclosure. Proprietary

                Information shall be held in confidence by the receiving party

                and its employees, and shall be disclosed to only those of the

                receiving party's employees and professional advisors who have a

                need for it in connection with the administration and

                implementation of this Agreement. In no event shall Client

                disclose SoftPro Proprietary Information to a Competitor of

                SoftPro. Each party shall use the same d