Ots And Ots Gold Software License Agreement

EXHIBIT 10.43


OTS AND OTS GOLD SOFTWARE LICENSE AGREEMENT


This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of March 4, 2005 ("Effective Date") and is made by and between ROCKY MOUNTAIN SUPPORT SERVICES, INC., an Arizona corporation ("RMSS"), and FIDELITY NATIONAL TAX SERVICE, INC., a California corporation ("Licensee").


1. DEFINITIONS.


As used in this Agreement:


1.1 "ASSISTANCE" shall mean installation, conversion planning, conversion,
consulting assistance, workshops, training or education classes which
may be performed by RMSS, or other functions mutually agreed to be
"Assistance" by Licensee and RMSS.


1.2 "COMPETITOR" shall mean a natural or legal person offering a product
that competes with RMSS Software.


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


1.4 "DOCUMENTATION" shall mean RMSS's standard operating instructions
relating to the RMSS Software, consisting of one copy of the object
code form of the RMSS Software; a copy of manuals consisting of
instructions and procedures for systems and operations personnel and
end users of RMSS Software, if any, and related documentation, if any.
RMSS will deliver the Documentation to Licensee in paper form, on CD
ROM or electronically, at RMSS's discretion (except that RMSS Software
shall be delivered on machine readable media). Licensee acknowledges
that not all items of Documentation are available in all forms of
media. RMSS shall have the right to change the medium upon which the
Documentation is delivered to Licensee without notice to Licensee.
Upon electronic delivery of Documentation, any obligation of RMSS to
deliver multiple numbers of copies of such Documentation to Licensee
shall have no further force or effect.


1.5 "ESCALATION PROCEDURES" shall mean the procedures set forth in Section
10 of this Agreement.


1.6 "INSTALLATION SITE" shall mean the location at which the RMSS Software
is installed and which is owned or controlled by Licensee, or a
Licensee 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 Licensee, and which is located in the
United States. The initial Installation Site address(es) is/are listed
in Section 2 of Exhibit A. Licensee may update the list of
Installation Sites from time to time upon thirty (30) days prior
written notice to RMSS.


1.7 "LICENSEE SERVER SOFTWARE" shall mean those client-server based
applications developed by RMSS that are set forth in Section 1.1 of
Exhibit A hereto necessary to use of the RMSS Software.


1.8 "MODIFICATION" shall mean any customization, enhancement, modification
or change made to the RMSS Software authored by or for RMSS under this
Agreement.


1.9 "PC SOFTWARE" shall mean those personal computer-based applications
developed by RMSS that are set forth in Section 1.2 of Exhibit A.


1.10 "PROPRIETARY INFORMATION" shall mean all information disclosed by or
for Licensee or RMSS to the other during the negotiations hereof
and/or learned by reason of the relationship established hereunder or
pursuant hereto, including, without limitation, the RMSS 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 RMSS receives from or at the direction of Licensee and that
concerns any of Licensee's "customers" and/or "consumers" (as defined
in the GLB Act).


1.11 "RELEASE" shall mean new versions, corrections, revisions, updates,
modifications and enhancements to the RMSS Software and related
Documentation made available to Licensee or generally made available
without charge to licensees of the RMSS Software not purchasing
Maintenance from RMSS.


1.12 "RMSS 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 Licensee but including in all events the products known
between the parties as OTS and OTS Gold.


1.13 "SOURCE CODE" of RMSS Software shall mean a copy of the source code
(or comparable high level coding) for the RMSS Software, including any
annotations therein, certified by RMSS to Licensee, upon each
prospective delivery to Licensee (if any), as a complete and accurate
copy of source code corresponding to the RMSS Software as last
delivered or otherwise made available in object code by RMSS (whether
in pieces or in an integrated whole).


1.14 "SUBSIDIARY" shall mean any majority-owned or otherwise controlled,
direct or indirect subsidiary.


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2. GRANT OF LICENSE.


2.1 GRANT. Subject to Licensee's full payment, as due, of fees listed in
Exhibit B, RMSS hereby grants to Licensee, and Licensee accepts from
RMSS, a world-wide nonexclusive, "AS IS", perpetual, irrevocable right
and license (except as otherwise provided for herein) to use,
reproduce, modify, and create derivative works of the RMSS Software
and Documentation at the Installation Site(s), subject to the
restrictions and obligations set forth herein.


2.2 DELIVERY. Licensee acknowledges and agrees that it has received, prior
to the Effective Date, delivery of the RMSS Software in Source Code
form and the Documentation.


3. SOFTWARE USE RESTRICTIONS.


3.1 RESTRICTIONS ON RMSS SOFTWARE.


(a) Licensee may not use the RMSS Software in a service bureau or in
a time share arrangement.


(b) Licensee may not sell, lease, assign, transfer, distribute or
sublicense the RMSS Software or Documentation, to any party that
is not a (direct or indirect) Subsidiary of Licensee. Licensee
may not sell, lease, assign, transfer, distribute or sublicense
the Source Code to any person or entity at any time, except that
Licensee may sublicense the Source Code to a Subsidiary of
Fidelity National Information Services, Inc., a Delaware
corporation ("FNIS"), as necessary to exercise Licensees rights
to modify and create derivative works of the RMSS Software and
Documentation.


(c) Licensee may not provide copies of, or allow use of or access to,
the RMSS Software to any person, firm, or corporation except as
permitted under Sections 3.1(b) above, and except as to
Licensee's non-Competitor contractors or subcontractors who have
executed nondisclosure terms consistent with the confidentiality
terms herein.


3.2 ADDITIONAL RESTRICTIONS ON PC SOFTWARE.


(a) Except as specifically set forth herein, all other restrictions
on use, copying or disclosure of the RMSS Software and Licensee's
agreement to maintain the confidentiality thereof shall apply to
the PC Software and its Documentation.


(b) Licensee may not modify the PC Software (although RMSS may do so
on Licensee's behalf as part of Assistance.)


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4. TERM; TERMINATION


4.1 The term of license shall be perpetual subject to termination in
accordance with the terms herein.


4.2 Licensee may terminate the license (for either or both of OTS or OTS
Gold) for convenience upon no less than ninety (90) Days prior written
notice to the other.


4.3 A license enjoyed by a Subsidiary of FNIS shall terminate without
further formality upon such entity's ceasing to be a Subsidiary of
FNIS. A license enjoyed by a Subsidiary of Licensee shall terminate
without further formality upon the six month anniversary date after
such entity's ceasing to be a Subsidiary of Licensee. Licensee shall
cause such Subsidiary to agree to migrate its data off the RMSS
Software and onto 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.


4.4 In the event Licensee or a Licensee Subsidiary discloses any of the
RMSS Software or any material part of the Documentation to a
Competitor, then RMSS upon thirty Days prior written notice to
Licensee, may terminate the license with respect to that portion
relating to the RMSS Software and Documentation provided to such
Competitor if Licensee on its own does not (or if Licensee does not
cause its Subsidiary to) discontinue disclosure of the RMSS Software
and Documentation to such Competitor within thirty (30) Days following
Licensee's receipt of RMSS' 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. RMSS shall retain
the right to pursue any other remedies in the event Licensee or its
Subsidiary makes an unauthorized disclosure to a Competitor, including
injunctive relief or recovery of damages, and, depending on the nature
of the disclosure, requesting that Licensee undertake other measures
in addition to simply discontinuing disclosure to the Competitor.


4.5 In the event of termination of the license for any reason, Licensee
and/or its Subsidiary, as applicable, shall promptly cease all use of
the relevant RMSS Software, delete from its systems all copies of the
relevant RMSS Software, and within thirty (30) Days of termination,
return to RMSS all tangible copies of the relevant RMSS Software,
together with certification that is has ceased such use, deleted such
copies and returned such tangible copies as required hereunder.


4.6 Each party acknowledges and agrees that, in the event of Licensee's
breach or threatened breach or any provision of Sections 3, 4.3, 4.4,
4.5 or 6, RMSS shall have no adequate remedy in damages and
notwithstanding the dispute resolution provisions in Section 10
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.


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5. INTELLECTUAL PROPERTY RIGHTS.


5.1 OWNERSHIP OF RMSS SOFTWARE AND DOCUMENTATION. From the date the RMSS
Software and Documentation is (and was) first disclosed to Licensee,
and at all times thereafter, as between the parties, RMSS and its
licensors shall be the sole and exclusive owners of all right, title,
and interest in and to the RMSS 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 RMSS and the RMSS
Subsidiaries from developing or marketing on their own or for any
third party, in the United States or any other country, the RMSS
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 Licensee, or any notice to Licensee.


5.2 DEVELOPMENT SERVICES. Licensee may from time to time wish to augment
the RMSS product with additional functionality or utility, or to
integrate it with Licensee systems from other sources, and for such
purposes may request the provision of development services, in the
form of Assistance from RMSS.


6. CONFIDENTIALITY.


6.1 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 6.


6.2 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) RMSS Software, 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
Licensee disclose RMSS Proprietary Information to a Competitor of
RMSS. Each party shall use the same degree of care and afford the same
protections to the Proprietary Information of the other party as it
uses and affords to its own Proprietary Information.


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6.3 EXCEPTIONS. Proprietary Information shall not be deemed proprietary
and, subject to the carve-out below, the receiving party shall have no
obligation of nondisclosure with respect to any such information
which:


(i) is or becomes publicly known through no wrongful act, fault or
negligence of the receiving party;


(ii) was disclosed to the receiving party by a third party that was
free of obligations of confidentiality to the party providing the
information;


(iii) is approved for release by written authorization of the
disclosing party;


(iv) was known to the receiving party prior to receipt of the
information;


(v) was independently developed by the receiving party without access
to or use of the Proprietary Information of the disclosing party;
or


(vi) is publicly disclosed pursuant to a requirement or request of a
governmental agency, or disclosure is required by operation of
law.


Notwithstanding application of any of the foregoing exceptions, in no
event shall RMSS treat as other than Proprietary Information,
information comprising nonpublic personal information under the GLB
Act.


6.4 CONFIDENTIALITY OF THIS AGREEMENT; PROTECTIVE ARRANGEMENTS.


(a) The parties acknowledge that this Agreement contains confidential
information that may be considered proprietary by one or both of
the parties, and agree to limit distribution of this Agreement to
those employees of Licensee and RMSS with a need to know the
contents of this Agreement or as required by law or national
stock exchange rule. In no event may this Agreement be reproduced
or copies shown to any third parties (except counsel, auditors
and professional advisors) without the prior written consent of
the other party, except as may be necessary by reason of legal,
accounting, tax or regulatory requirements, in which event
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