Information Technology Services Agreement (2006)Full Document 

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INFORMATION TECHNOLOGY SERVICES AGREEMENT
BETWEEN
FIDELITY INFORMATION SERVICES, INC.
And
SOLERA BANK, N.A. (IO)

THIS AGREEMENT by and between Fidelity Information Services, Inc., an Arkansas corporation with offices located at 601 South Lake Destiny Road, Suite 300, Maitland, Florida 32751 (“Fidelity”) and Solera Bank, N.A. (IO), with offices located at 6920 W. 38th Avenue, Wheat Ridge, Colorado 80033 (“Customer”) (each of Fidelity and Customer, a “party,” and collectively, the “parties”) is made as of the later of the dates on which the parties sign below (“Effective Date”).

The parties have agreed to certain General Terms and Conditions as more particularly identified below and attached hereto (“General Terms”). The parties agree that the General Terms shall be incorporated by reference to each Schedule identified below and attached hereto (“Schedule”) as well as to such additional Schedule(s) as may be agreed to by the parties from time to time, provided however, that each such Schedule explicitly incorporates these General Terms.

The parties acknowledge that each has reviewed the version number, as set forth below, used to identify the General Terms and the Schedule(s) attached hereto and confirm that said version number is the correct version of the General Terms and Schedule(s) to which each party has agreed.

The parties hereby agree that each Schedule combined with the General Terms and this Signature Page constitutes a separate and independent legal agreement between the parties (“Agreement”).
  
x
GENERAL TERMS AND CONDITIONS
(GTC104v1 dated 01/22/06)
x
BancPac Service Bureau Processing Schedule
(SCHBNCPCSB100v1 dated 01/22/06)
x
Software License Schedule
(SCHLIC104v1 dated 01/22/06)
x
Software Maintenance Schedule
(SCHMAINT103v1 dated 01/22/06)
x
Item Processing Services Schedule
(SCHIP100v1 dated 01/22/06)
x
Equipment Purchase Schedule
(SCHBPEQPURCH100v1 dated 01/22/06)
x
Network Services Schedule
(SCHNS102v1 dated 01/22/06)
x
Internet Banking Services Schedule
(SCHIB103v1 dated 01/22/06)
x
Electronic Bill Payment Services Schedule
(SCHCFBP101v1 dated 01/22/06)
x
Website Development and Hosting Services Schedule
(SCHWEB101v1 dated 01/22/06)
x
Electronic Funds Transfer Services Schedule
(SCHEFT102v1 dated 01/22/06)

THE AUTHORIZED OFFICER OR REPRESENTATIVE OF EACH PARTY has signed this Agreement as a legally binding obligation of such party.
 
FIDELITY INFORMATION SERVICES, INC.   SOLERA BANK, N.A. (IO)
         
By:
   
  By: 
/s/ Robert Fenton
Name:  Gary Norcross   Name:  Robert Fenton
Title:
 President, Integrated Financial Solutions
  Title:
 EVP,Chief Operating Officer(Proposed)
Date:
      
  Date:
 March 22, 2006
 
 

                   
GENERAL TERMS AND CONDITIONS

These General Terms and Conditions (“General Terms”) shall apply to and be incorporated by reference into each and every Signature Page and Schedule between Fidelity Information Services, Inc. of Maitland, Florida (“Fidelity”) and Solera Bank, N.A. (IO) of Wheat Ridge, Colorado (“Customer”) (each of Fidelity and Customer, a “party,” and collectively, the “parties”) and shall be coterminous with each such Schedule provided however that each such Signature Page and Schedule explicitly incorporates by reference these General Terms.
 
1.    DEFINITIONS

Except as may be modified in any Addenda to these General Terms, a Schedule or attachment thereto, the following defined terms shall have the meanings ascribed to them below.

 
1.1
Adjustment Date” shall mean the first of the month in which the anniversary of the Commencement Date, as defined in each Schedule, falls each year.

 
1.2
Affiliate” shall mean a company which owns or controls, directly or indirectly, a majority of the stock of one of the parties, or a company whose stock is owned or controlled, directly or indirectly, by one of the parties or its parent.

1.3
Agreement” shall be as defined on the applicable Signature Page.

 
1.4
Attachment” shall mean the document setting forth the fees for contracted products and/or services as described in the Schedule and which is attached to such Schedule and may be numbered.

 
1.5
Commencement Date” shall be specifically defined in the appropriate Schedule(s) describing an item of Software, Third Party Software, Equipment or a Service to be provided to Customer.

 
1.6
Confidential Information” shall mean all information of a non-public nature including Customer Proprietary Information and Fidelity Proprietary Information. “Confidential Information” shall also include all “non-public personal information” as defined in Title V of the GLB Act that Fidelity receives from or at the direction of Customer and that concerns any of Customer’s “customers” and/or “consumers” (as defined in the GLB Act).

 
1.7
CPI-U” shall mean Consumer Price Index for All Urban Consumers-Other Goods and Services as published by the U.S. Department of Labor, Bureau of Labor Statistics.

 
1.8
Customer” shall mean the financial institution, company or entity other than Fidelity listed on the Signature Page.

 
1.9
Customer Proprietary Information” shall mean all of Customer’s data, output, and any Customer-provided software, if applicable, and any modifications to the foregoing.

 
1.10
Equipment” shall mean the hardware that may be identified in a Schedule and/or Attachment as being sold or leased to Customer pursuant to the terms of such Schedule.

 
1.11
Escalation Procedures” shall mean the procedures set forth in Section 16.3 of these General Terms and Conditions.
 
 

 
 
1.12
Expiration Date” shall mean the last day of the Initial Term or of the then-current Renewal Term.

 
1.13
Fidelity Proprietary Information” shall mean specifications, manuals, tapes, programs, file formats, user documentation, and the Software and other materials belonging to, developed by, and/or furnished to Customer by Fidelity and any enhancements or modifications to the foregoing.

 
1.14
GLB Act” shall mean the Gramm-Leach-Bliley Act (15 U.S.C. Section 6801, et seq.) and the implementing regulations thereunder, as the same may be amended from time to time.
 
 
1.15
Initial Term” shall be set forth in the applicable Schedule.

 
1.16
Press Release” shall mean any news release, public announcement, news media response or other form of release of information concerning this Agreement or the transactions contemplated hereby that is intended to provide such information to the news media or the public.

1.17
Renewal Term” shall be set forth in the applicable Schedule.

 
1.18
Schedule(s)” shall mean each of the separate schedule(s) which further describe the products and/or services being provided to Customer by Fidelity and to which these General Terms apply.

 
1.19
Services” shall mean the services that are described in a Schedule, including, not limited to, data processing, support, recovery, and/or consulting services.

 
1.20
Signature Page” shall be the cover page attached to these General Terms and/or each Schedule which requires a signature by each of the parties. A separate Signature Page shall be signed each time the parties agree to add another Schedule to these General Terms which shall more specifically identify the Schedule being attached.

 
1.21
Software” shall mean the object code version of the proprietary computer programs of Fidelity that may be identified in a Schedule and/or Attachment as being licensed to Customer pursuant to the terms of such Schedule and/or Attachment.
 
1.22
Term” shall be as set forth in the applicable Schedule.

 
1.23
Termination Date” shall be the last day that a product(s) or service(s) is being provided to Customer by Fidelity.

 
1.24
Third Party Software” shall mean the object code version of the proprietary computer programs of a third party that may be identified in a Schedule and/or Attachment as being licensed by Customer pursuant to the terms of such Schedule.

2.    TERMINATION AND RENEWAL
 
2.1 Right to Terminate. Either party may elect to terminate this Agreement if: (a) the other party fails to cure any material default hereunder within ninety (90) days after receipt of written notice from the non-defaulting party, which notice shall specify the nature and extent of any such material default (except for a default caused by nonpayment by Customer which is addressed in Section 3.3 or for a material breach of the confidentiality obligations as set forth in Section 9); or (b) the other party ceases to do business, makes a composition or assignment for the benefit of creditors, becomes bankrupt or insolvent, or is found subject to any provisions of the bankruptcy code concerning involuntary bankruptcy or similar proceeding.
 


2.2 Method of Termination. Exercise of the right to terminate under Section 2.1 must be accomplished by written notice (in accordance with Section 17.2) to the defaulting party, specifying the basis for such termination, and fixing the Termination Date which shall be a date following the date of such notice. If either party is terminating under Section 2.1 (a) above, in which the other party has failed to cure a default, such written notice shall allow one hundred eighty (180) days following the date of such notice for complete termination of Services unless otherwise specified in a Schedule. If either party is terminating under Section 2.1 (b) above, no notice of default or cure period is required and such written notice will allow thirty (30) days following the date of such notice for complete termination of this Agreement.

2.3 No Waiver of Default. The failure of either party to exercise any right of termination hereunder shall not constitute a waiver of the rights granted herein with respect to any subsequent default.

2.4 Extended Services. Any services that are provided to Customer after the expiration or termination of this Agreement, for which a written agreement has not been entered into by the parties, shall be provided by Fidelity on a month-to-month basis subject to the terms and conditions of this Agreement, except that the fees for such services shall be one hundred twenty-five percent (125%) of Fidelity’s then-current standard fees.

2.5 Liquidated Damages. If this Agreement is terminated by Customer for any reason other than as permitted under Section 2.1, Customer shall pay to Fidelity, as liquidated damages and in addition to all unpaid amounts due and owing to Fidelity under this Agreement from the Effective Date up to and including the Termination Date, (i) a fee equal to the remaining fees due under this Agreement from the day immediately following the Termination Date through the end of the Term or then current Renewal Term had the termination not occurred; (ii) with respect to any transaction-based services, an amount equal to the average of all transaction-based fees paid by Customer on average per month during the six (6) month period immediately preceding the Termination Date, multiplied by the number of months remaining in the Term or the then current Renewal Term; (iii) any termination and shutdown costs incurred by Fidelity; and (iv) the then net book value of all software and hardware acquired by Fidelity to perform the Services hereunder on Customer’s behalf during the Term or any Renewal Term, if any. No refund of fees shall be made to Customer. Termination and shutdown costs may include, but are not necessarily limited to: costs actually incurred by Fidelity to cancel leases, licenses, subcontractor or other similar agreements, and costs associated with termination and/or relocation of dedicated resources. Fidelity shall use its reasonable efforts to mitigate the termination and shutdown costs.

2.6 Date Fees are Payable. All known fees described in this Section 2 are due and payable prior to the earlier of (a) sixty (60) days prior to the Termination Date or (b) the release of any data in Fidelity’s possession to Customer. Any fees not known as of the date notice is given will be invoiced to Customer as they are incurred by Fidelity. Furthermore, in addition to the fees described in this Section 2, Customer shall continue to make all payments due and payable to Fidelity pursuant to this Agreement for any Services rendered through the Termination Date. The fees described in this Section 2 are exclusive of any fees associated with deconversion.

2.7 Return of Fidelity Data. Upon termination of these General Terms or any Schedule attached hereto, Customer will, at its expense, promptly return to Fidelity or destroy all copies of written or electronic materials, maintenance and policy manuals and other publications of Fidelity relating to the Services being so terminated (collectively "Copies"). Customer will destroy all Copies contained on any hard drive or other fixed medium of storage. Within sixty (60) days from the date of termination of these General Terms or any Schedule attached hereto, an officer of Customer will certify in writing to Fidelity that Customer has complied with all requirements of this Section.

3.    FEES AND EXPENSES

3.1 Fees Payable to Fidelity. The fees payable pursuant to this Agreement are set forth in the Schedule and/or Attachment, shall be paid in U.S. Dollars, and shall be due to Fidelity within thirty (30) days of date of invoice, except as set forth in Section 2. Customer shall also pay to Fidelity any pass-through costs, fees and charges imposed upon Fidelity related to the Services provided hereunder. All payments due to Fidelity hereunder shall, unless otherwise indicated, be mailed to Fidelity at the remittance address on the invoice. If mutually agreed between the parties, Customer may alternatively make all payments under this Agreement by wire transfer or ACH of immediately available U.S. funds to an account or accounts designated by Fidelity. In the event that the due date of any payment is not a day upon which banks are open in the United States, then the due date of the payment shall be the next bank business day. Any amount not received by Fidelity within fifteen (15) days after the payment due date shall be subject to interest on the balance overdue at a rate equal to the lesser of: (i) the prime rate plus two percent (2%) per annum, as published in the Wall Street Journal on the first Monday (or next bank business day) following the payment due date; or (ii) the highest rate permitted by law, in each case for the number of days from payment due date up to and including the date payment is actually received by Fidelity. However, if any amount is not paid when due, Fidelity may, at its option, immediately suspend performance hereunder until payment is made, in addition to any other rights or remedies provided to Fidelity by this Agreement or applicable law.
 


3.2 Disputed Charges. Should Customer dispute in good faith all or a portion of the amount due on any invoice or require any adjustment to an invoiced amount, Customer shall notify Fidelity in writing prior to the payment due date, of the nature and basis of the dispute and/or adjustment as soon as possible using the dispute resolution procedures set forth in Section 16 of this Agreement. Each party shall use its reasonable efforts to resolve the dispute prior to the payment due date. If the parties are unable to resolve the dispute prior to the payment due date, Customer shall nevertheless pay the entire amount to Fidelity by the due date. If it is ultimately determined that Customer should not have paid such amount to Fidelity, Fidelity shall credit this amount, plus interest in accordance with Section 16.1 of this Agreement on Customer’s next invoice.

3.3 Monetary Default. Failure to pay any amount due under this Agreement, excluding disputed charges described in Section 3.2, within thirty (30) days of the date of invoice shall be deemed a monetary default (“Monetary Default”). In the event such Monetary Default is not cured within seven (7) business days after written notice is provided to Customer from Fidelity, then Fidelity may suspend or cancel Customer’s use of or access to the Services relating to the Monetary Default and may terminate this Agreement and pursue any and all other rights in law or equity that Fidelity may have. In addition to the foregoing, in the event that two (2) monetary defaults occur within any six (6) month period, Fidelity, at its sole discretion, may change the payment terms (including, but not limited to, requiring payment by wire, or requiring payment in advance of Fidelity providing or delivering such Services).

3.4 Adjustment of Fees. The recurring fees, as outlined in the Schedule(s) and/or Attachment(s) (non-pass through and non-one-time fees) shall be adjusted annually on the Adjustment Date. Fees shall be increased, but not decreased, by the percentage increase in the CPI-U for the month of December preceding the Adjustment Date over the CPI-U for the month of December in the immediately preceding year. If additional products and/or services are added to the Agreement, the fees for such additional products or services shall be adjusted on such Adjustment Date in accordance with this Section. In the event the CPI-U is unavailable in time to allow the adjustment to be made on the Adjustment Date, Customer shall continue to pay the then-current fees for the Services until the CPI-U is made public, at which time the adjustment shall be calculated retroactively to the Adjustment Date, and Customer shall immediately pay to Fidelity any difference between the fees actually paid and adjusted fees. The adjustments shall be compounded and cumulative. In the event the CPI-U is discontinued or revised during the Initial Term or any Renewal Term, Fidelity shall select another governmental index or computation as a substitute for the CPI-U in order to obtain substantially the same result as if the CPI-U had not been discontinued or revised. Fidelity reserves the right to adjust at any time, pass-through costs, fees and charges, outside its control.

3.5 Payment of One-Time Fees. Except as may be specifically stated in a Schedule and/or Attachment or otherwise mutually agreed by the parties in writing, Customer shall pay all one-time fees in the following manner: fifty percent (50%) upon Customer’s signing of this Agreement and/or as set forth in the Schedule(s), as applicable, and the remaining fifty percent (50%) on the Commencement Date.
 


3.6 Payment of Recurring Fees. Fidelity will commence invoicing Customer for the recurring fees set forth in the Schedule and/or Attachment on the Commencement Date and Customer shall pay such fees as invoiced.

3.7 Travel and Expenses. Customer shall reimburse Fidelity for all reasonable travel and expenses related to the performance of any Services provided by Fidelity that require Fidelity personnel to travel.

3.8 Mergers and Acquisitions. At Customer’s request and subject to Section 17.11, Fidelity will provide additional licenses, process additional data and perform additional Services resulting from any merger, acquisition, affiliation or restructuring (regardless of form) involving Customer for fees to be mutually agreed upon prior to the time Customer begins using the Software or Services in the expanded environment.

4.    TAXES

All charges and fees to be paid by Customer under this Agreement are exclusive of any applicable withholding, sales, use, value added, excise, services or other United States or foreign tax which may be assessed on the provision of the Services. In the event that a withholding, sales, use, value added, excise, services or other United States or foreign tax is assessed on the provision of any of the Services provided to Customer under this Agreement, Customer will pay directly, reimburse or indemnify Fidelity for such taxes, as well as any applicable interest, penalties and other Fidelity fees and expenses. The parties will cooperate with each other in determining the extent to which any tax is due and owing under the circumstances, and shall provide and make available to each other any resale certificates, information regarding out-of-state or country use of materials, services or sale, and other exemption certificates or information reasonably requested by either party. Customer shall not be liable for payment of any taxes based on Fidelity’s net income.

5.    FORCE MAJEURE

Fidelity shall not be liable for any loss, expense, error or delay, including but not limited to delays in processing of data or delivery of output or items to Customer, or any inability to provide Services hereunder, from any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, government agencies, delay or failure to receive any required government approvals, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts affecting facilities, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation carriers or omissions of third parties (including but not limited to acts or omissions of any third party service provider or equipment vendor, messenger service or telephone carrier). Upon the occurrence of a condition described in this Section 5, Fidelity shall give written notice to Customer describing the affected area of performance, and the parties shall promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact, on both parties, of such condition, including, without limitation, implementing disaster recovery services. Fidelity shall use commercially reasonable efforts to minimize the delay caused by force majeure events and recommence the performance of Services affected by the force majeure event. In the event the delay caused by the force majeure event lasts for a period of more than thirty (30) days, the parties shall negotiate an equitable modification to this Agreement with respect to the Services affected by the force majeure event. If the parties are unable to agree upon an equitable modification within fifteen (15) days after the expiration of such thirty (30) day period, then Customer shall be entitled to serve thirty (30) days’ written notice of termination to Fidelity. If the force majeure event continues to affect performance of Services on the expiration of such thirty (30) day notice period, the portion of this Agreement relating to the affected Service shall, at Customer’s option, terminate. The remaining portion of this Agreement that does not involve the affected Service shall continue in full force and effect. In such event Fidelity shall be entitled to be paid for that portion of the affected Service that Fidelity has completed or is in the process of completing through the Termination Date.
 


6.    EXCLUSIONS AND LIMITATION OF LIABILITY

As a condition precedent to any liability of Fidelity, Customer must notify Fidelity in writing of any alleged negligence or breach of this Agreement as promptly as reasonably possible, but in no event later than five (5) business days following the day on which such alleged negligence or breach was, or could reasonably have been, discovered by Customer. FIDELITY’S LIABILITY, IF ANY, FOR ANY CLAIM, CAUSE OF ACTION OR LIABILITY WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LIABILITY FOR PROCESSING ERRORS OR NEGLIGENCE, SHALL BE LIMITED TO (I) CUSTOMER’S DIRECT DAMAGES, ACTUALLY INCURRED, WHICH UNDER NO CIRCUMSTANCES SHALL EXCEED FIDELITY’S CHARGES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE ALLEGED NEGLIGENCE OR BREACH FOR THE PARTICULAR SERVICE TO WHICH CUSTOMER’S CLAIM PERTAINS OR (II) THE FINANCIAL REMEDIES SPECIFIED IN ANY SCHEDULE, IF APPLICABLE, WHICHEVER IS LESS. ALL DAMAGES SHALL BE REDUCED BY ANY AMOUNT RECEIVED BY CUSTOMER UNDER ANY INSURANCE POLICY COVERING THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL FIDELITY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, CLAIMS FOR LOSS OF REVENUE OR PROFITS, OR FOR CLAIMS OR DEMANDS MADE BY ANY THIRD PARTIES, EVEN IF FIDELITY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FIDELITY SHALL HAVE NO LIABILITY, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE WHICH RESULTS DIRECTLY OR INDIRECTLY FROM THE INTERNAL OPERATIONS AND PERFORMANCE OF ANY CUSTOMER PROVIDED SOFTWARE OR ANY ENHANCEMENT, DEVELOPMENT OR MAINTENANCE THEREOF.  This Section also limits the liability of any agent, employee or Affiliate of Fidelity.

7.    REPRESENTATIONS, WARRANTIES AND COVENANTS

7.1 No Interference with Contractual Relationship. Each party warrants that, as of the date hereof, it is not subject to any contractual obligation that would prevent it from entering into this Agreement. Customer and Fidelity each further warrant to the other that entering into this Agreement shall not cause or induce it to breach any of its other contractual obligations.

7.2 Covenant of Good Faith. Each of the parties agrees that, in its respective dealings with each other with respect to this Agreement, it shall act fairly and in good faith.

7.3 Authorization and Effect. Each party represents and warrants to the other that the person signing this Agreement on behalf of the respective party has the requisite authority to do so, that both parties have been represented by counsel in their review of and prior to executing this Agreement and no further assurances are required for either party to be bound by the terms and conditions of this Agreement.

7.4 Customer Software. If necessary for Fidelity to perform its obligations under this Agreement, Customer represents and warrants to Fidelity that any Customer software shall conform in all material respects with its documentation and specifications.

7.5 Professional and Workmanlike.   Each party represents and warrants to the other that they shall perform their respective obligations under this Agreement in a professional and workmanlike manner.

7.6 Exclusive Provider. Customer represents and warrants that Fidelity, its Affiliates and/or subcontractors will be Customer’s sole and exclusive provider of the Services.

7.7 Disclaimer of Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, FIDELITY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR EQUIPMENT, AND CUSTOMER AGREES THAT ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES THAT ARE NOT PROVIDED IN THIS AGREEMENT ARE HEREBY EXCLUDED AND DISCLAIMED.
 


THE PARTIES ACKNOWLEDGE THAT FIDELITY HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

8.    INDEMNIFICATION
 
8.1 Infringement of Fidelity Software. Subject to Section 6, Fidelity shall defend, at its own expense, any claim or action brought by any third party against Customer or against its officers, directors, employees, Customer’s Affiliates, or agents for actual infringement of any patent, copyright or other intellectual property right (including, but not limited to, misappropriation of trade secrets) based upon the Software furnished hereunder by Fidelity to provide Services to Customer hereunder. Furthermore, Fidelity shall indemnify and hold Customer and the Customer’s Affiliates harmless from and against any and all liabilities, losses, costs, damages, and expenses (including reasonable attorneys' fees) associated with any such claim or action incurred by Customer and the Customer’s Affiliates. Fidelity shall have the sole right to conduct and control the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties hereto. Fidelity shall give Customer, and Customer shall give Fidelity, as appropriate, prompt written notice of any written threat, warning or notice of any such claim or action against Fidelity or Customer, as appropriate, or any other user or any supplier of components of the Software, which could have an adverse impact on Customer’s use of same, provided Fidelity or Customer, as appropriate, knows of such claim or action. If, in any such suit so defended, all or any part of the Software (or any component thereof) is held to constitute an infringement or violation of any other party's intellectual property rights and is enjoined, or if in respect of any claim of infringement, and if Fidelity deems it advisable to do so, Fidelity shall at its sole option take one or more of the following actions at no additional cost to Customer: (a) procure the right to continue the use of the same without material interruption for Customer; (b) replace or modify the Software with non-infringing software or component thereof without adversely altering its function or performance in any material way; or (c) take back the infringing Software or component thereof and credit Customer with an amount equal to the license fee for such Software or component thereof paid by the Customer. The foregoing represents the sole and exclusive remedy of Customer with regard to any of the above infringements or alleged infringements.
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