Simon Software License Agreement

EXHIBIT 10.44


SIMON 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
performed by RMSS, or other functions mutually agreed to be
"Assistance" by Licensee and RMSS.


1.2 "BASE MODIFICATION" shall mean any Modification which RMSS, in its
sole discretion, has incorporated into the base version of the RMSS
Software which RMSS makes available to itself and other subsidiaries
of Fidelity National Financial, Inc. ("FNF").


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


1.4 "CUSTOM MODIFICATION" shall mean any Modification to the RMSS Software
other than a Base Modification.


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


1.6 "DEFECT" shall mean any failure, malfunction, defect or non-conformity
in the RMSS Software that prevents the RMSS Software in any material
respect from operating and performing in accordance with the
Documentation.


1.7 "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.


1.8 "ESCALATION PROCEDURES" shall mean the procedures set forth in Section
11.2 of this Agreement.


1.9 "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 is 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.


1.10 "LICENSEE SERVER SOFTWARE" shall mean those client-server based
applications set forth in Section 1.3 of Exhibit A hereto.


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


1.12 "MAINTENANCE RELEASE" shall mean the current Release of the RMSS
Software and the immediately prior Release (provided that such
Releases have been made available to Licensee), and shall also
include, at any given time, each Release delivered to Licensee within
the prior two years.


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


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


1.15 "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).


1.16 "RELEASE" shall mean the Base Modifications, and other new versions,
corrections, revisions, updates, modifications and enhancements to the
RMSS Software and related Documentation.


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1.17 "SERVER" shall mean a logical server that may include one (1) or more
physical servers.


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


1.19 "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 a product known
between the parties as SIMON. RMSS Software includes all Base
Modifications, all Modifications authored by or for RMSS, and all
Releases issued during the term of Maintenance under this Agreement.


1.20 "SOURCE CODE" of RMSS Software shall mean a copy of the source code
(or comparable high level coding) for the RMSS Software, if and to the
extent RMSS has or retains any such code, including any annotations
therein, certified by RMSS to Licensee, upon delivery to Licensee, as
an accurate copy of such source code for RMSS Software as RMSS has in
its possession.


1.21 "THIRD PARTY SOFTWARE" shall mean those third party applications
provided by RMSS that are set forth in Section 1.4 of Exhibit A.


1.22 "USE LIMITATIONS" shall mean the use by Licensee of the Licensee
Server Software in total on no more than the number of Servers
licensed herein.


2. GRANT OF LICENSE.


2.1 GRANT. Subject to Licensee's full payment, as due, of fees listed in
Exhibit C, RMSS hereby grants to Licensee, and Licensee accepts from
RMSS, a worldwide nonexclusive, perpetual, irrevocable right and
object code license (except as otherwise provided for in Section 3
below) to use 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 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 Licensee's installation(s) of RMSS Software, RMSS shall
promptly deliver to Licensee a copy of Source Code, which shall be
subject to all of the license terms and restrictions applicable to the
RMSS Software.


3.2 CONDITIONS. RMSS's duty of delivery of Source Code as described above
shall be immediately due and enforceable in equity upon any of these
circumstances:


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(a) RMSS has given notice to Licensee under terms of Maintenance that
RMSS shall cease, or RMSS has ceased, (i) providing Maintenance
generally or (ii) supporting any part of RMSS Software, and in
the event of notice of future termination, such termination
(whenever notice is given) shall be effective within twelve
months.


(b) RMSS 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 RMSS as bankrupt
or insolvent or approving a petition seeking reorganization of
RMSS or appointing a receiver, trustee, or liquidator of RMSS 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) RMSS shall be in breach of any material covenant herein or under
Maintenance which, following notice of breach in reasonable
detail from Licensee, is not cured within thirty (30) Days. To
the extent the breach relates to Maintenance on a specific module
or separable component of RMSS Software, the duty of Source Code
delivery shall be limited to the Source Code for such specific
module or separable component.


(d) Licensee shall have requested development or integration services
with respect to RMSS Software which RMSS 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 RMSS 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 RMSS under this
subsection (d), upon Licensee's completion of its
development or integration effort, equating generally to the
same scope of work that RMSS was requested to perform but
did not perform, it will provide to RMSS 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, RMSS shall be
deemed granted a license to use that source code developed
by Licensee or its non-Competitor contractors, solely for
maintenance or further development of the RMSS Software as
implemented for Licensee and for no other use or
beneficiary.


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(iii) Six (6) months following the delivery by Licensee to RMSS
of source code for Licensee's developments or enhancements
under Section 3.2(d)(ii), RMSS may request that Licensee
certify, and Licensee will promptly certify to RMSS, that
Licensee has destroyed all copies of (x) Source Code
delivered to it by RMSS 3.2(d) and (y) all copies of the
source code for Licensee's development or enhancement -
except two hard copy prints of source code for Licensee's
development or enhancement for proof of authorship;
provided, however, that the six (6) month limitation above
shall not apply in the event that the development of Release
1.0 of the eLenders Solutions software under the eLenders
Joint Development Agreement dated March 4, 2005 is not
completed on the scheduled completion date and Accepted
under the terms of that agreement, and in such event, the
RMSS' request for certification under this Section
3.2(d)(iii) may not be made until such Release 1.0 is
completed and Accepted.


(iv) Licensee'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 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 shall use RMSS Software subject to the Use Limitations.


(d) Licensee will not make copies, or similar versions of the RMSS
Software or any part thereof without the prior written consent of
RMSS, except in the process of contemplated use, for
administrative, archival or disaster recovery backup, and as
expressly provided otherwise herein.


(e) Licensee may not provide copies of the RMSS 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
Licensee's non-Competitor


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contractors or subcontractors who have executed nondisclosure
terms consistent with the confidentiality terms herein.


(f) Licensee shall not allow any third party to use or have access to
the RMSS Software for any purpose without RMSS's prior written
consent except as permitted under Sections 4.1 (b) and (d) above,
and except as to Licensee's non-Competitor contractors or
subcontractors who have executed nondisclosure terms consistent
with the confidentiality terms herein.


(g) Licensee agrees not to disclose, decompile, disassemble or
reverse engineer the RMSS 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 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.)


5. TERM; TERMINATION


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


5.2 Licensee may terminate the license for convenience upon no less than
ninety (90) Days prior written notice to RMSS.


5.3 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. Prior to such
Subsidiary ceasing to be a Subsidiary of Licensee, Licensee shall
cause such Subsidiary to agree to migrate its data off the RMSS
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 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 Days following
Licensee's receipt of RMSS' written notice. Any such termination shall
be effective upon the


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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.


5.5 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.


5.6 Each party acknowledges and agrees that, in the event of Licensee's
breach or threatened breach or any provision of Sections 4, 5.3, 5.4,
5.5 or 7, RMSS 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.


6. INTELLECTUAL PROPERTY RIGHTS.


6.1 OWNERSHIP OF RMSS SOFTWARE AND DOCUMENTATION. From the date the RMSS
Software and Documentation is 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 a ...