Exhibit 10 (j)
LICENSE AND SERVICE AGREEMENT
This License and Service Agreement ('Agreement') numbered 3810225 is entered
into as of November 23, 2005 ('Effective Date') by and between Fiserv Solutions,
Inc., a Wisconsin corporation with offices located at 600 Colonial Center
Parkway, Lake Mary, Florida 32746 ("Fiserv") and 1st Source Bank, a State
chartered bank organized under the laws of Indiana, with offices located at 100
North Michigan, South Bend, Indiana 46601 ("Client').
WITNESSETH:
WHEREAS, Fiserv is the licensor of Software (as defined below), and
WHEREAS, Client wishes to install and Use (as defined below) Software in
Client's premises.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
The following definitions are used in this Agreement:
1.1 'Basic Maintenance Services' means maintenance services described in
Section 5 below. Basic Maintenance Services are available only with respect
to the current and last prior Software release made generally available to
all Fiserv clients licensed to use the applicable Software.
1.2 `Business Requirements List' means Client's detailed operational and
business requirements as relates to the functioning of the Software.
1.3 `CBS Core Application' means the Software listed in License section of
Exhibit M-1 under the heading "Core Application."
1.4 `Change Request' means changes to scope or pricing for a professional
service deliverable as specified on Fiserv's then current Change Request
form.
1.5 'Client Confidential Information' means any confidential plans, procedures,
products, policies, research, development, trade secrets, business affairs,
customer lists, information, and other proprietary material of Client that
is marked with a restrictive legend, or if not so marked with such legend
or if disclosed orally, is identified as confidential at the time of
disclosure (and written confirmation thereof is promptly provided to
Fiserv); (B) any information and data concerning the business and financial
records of Client's customers prepared by or for Fiserv, or used in any way
by Fiserv in connection with the provision of Services (whether or not any
such information is marked with a restrictive legend; and (C) any
information and data received from Client that Fiserv reasonably ought to
know is confidential (whether or not any such information is marked with a
restrictive legend).
1.6 'Computer System' means the manufacturer-supplied equipment and software
identified on each Exhibit 1n. Client shall have sole responsibility to own
or lease, unpack, plan, install, test, and maintain the equipment according
to any and all applicable building or electrical codes, regulations or
requirements, as well as the manufacturer and Fiserv recommendations.
1.7 'Documentation' means the Software documentation specified on each Exhibit
1n.
1.8 `Effective Date' means the date identified as such in this Agreement as the
date upon which this Agreement shall commence.
1.9 'Enhancements' means modifications made to Software that add program
features or functions not originally within the Software and that are
provided upon payment of additional License Fees. Fiserv reserves the right
to determine which changes are upgrades or separately priced enhancements.
1.10 'Equipment' means the computer hardware identified on each Exhibit 2n.
1.11 'Exhibit 1n' and 'Exhibit 2n' means each sequentially lettered Exhibit for
Software and Equipment, respectively, to be provided by Fiserv to Client
under this Agreement; e.g. Exhibit 1A, 1B, 1C, Exhibit 2A, 2B, 2C.
1.12 `Functional Specifications' means the description of the detailed
functionality changes to Software developed by Fiserv that are based on the
Business Requirements List approved by Client.
1.13 `License" means rights to Use the Software, as set forth in Section 2.1, at
the Location on the designated Computer System (i) to process the
designated number of accounts; or (ii) by the maximum number of users, or
other fee determinant specified in each Exhibit 1n.
1.14 'Location' means the premises identified on each Exhibit 1n.
1.15 'Maintenance Fee' means the annual fee specified in each Exhibit 1n for
Basic Maintenance Services.
1.16 `Modifications' means changes or interfaces made by Fiserv to the Software
at Client's request, that are provided pursuant to Section 4 below and for
which Special Maintenance Fees will apply.
1.17 'Non-conformity' means a failure of Software to perform in substantial
accordance with the functions described in the Documentation.
1.18 'Operational Support' means optional Fiserv services available, at Client
request, to support Client's Software operation. Operational Support shall
only be available if Client is receiving Basic Maintenance Services.
1.19 `PRDA' means a Project Requirements Definition Authorization or similar
work authorization signed by Client.
1.20 'Professional Service Fees' means fees specified in each Exhibit 1n for
professional services provided by Fiserv related to the Software.
1.21 `Services' means Professional Services, Basic Maintenance Services, and
Special Maintenance Services.
1.22 'Software' means the standard, unmodified computer programs in object code
(or in the case of the CBS Core Application as specified in Exhibit 1A,
standard, unmodified computer programs provided in source code), together
with one set of Documentation as specified in each Exhibit 1n. Software
does not include separate, independent, and stand-alone modules or
subsystems that Client has developed and maintained without Fiserv's
assistance.
1.23 'Software System' means the Software and Third Party Software.
1.24 'Special Maintenance Services' means any other maintenance services as
specified on each Exhibit 1n. , PRDA or similar work authorization.
1.25 'Special Maintenance Fees' means the annual fee specified in each Exhibit
1n, PRDA or similar work authorization for Special Maintenance Services.
1.26 'Specification Non-conformity' means a failure of the modified Software to
operate in accordance with the Functional Specifications.
1.27 'Taxes' means all sales, use, excise, value added, and other taxes and
duties however designated levied by any taxing authority. Taxes shall not
include any levies by any taxing authority based on Fiserv's net income.
1.28 'Third Party' means any party other than Fiserv, and its employees, agents,
and subcontractors, and Client.
1.29 'Third Party Software' means software provided by Fiserv that is owned or
licensed by Third Parties, where applicable, as identified on Exhibit 1n.
1.30 'Total License Fee' means the total License fee specified on each Exhibit
1n for Software.
1.31 'Upgrades' means changes made to maintain compatibility with new system
software releases or to improve previously existing features and operations
within Software. This primarily includes Software program fixes.
1.32 'Use' means copying or loading any portion of Software from storage units
or media into any equipment for the processing of data by Software, or the
operation of any procedure or machine instruction utilizing any portion of
either the computer program or instructional material supplied with
Software. Use is limited to the type of operations described in the
Documentation solely to process Client's and its Affiliates' work, provided
that Client notifies Fiserv in writing prior to beginning processing the
work of any Affiliate and Client provides Fiserv with an accounting of the
change in the number of accounts, users, workstations, asset size, or other
fee determinant within 30 days following the start of such processing. As
used herein, "Affiliate" means an entity that owns more than 50% of Client;
an entity that is more than 50% owned by the same entity that owns more
than 50% of Client; an entity of which Client owns more than 50%
("Subsidiary"); or an entity that is more than 50% owned by a Subsidiary.
Use specifically excludes any service bureau or time-share services to
Third Parties without Fiserv's prior written consent and payment by Client
of additional fees in accordance with mutually agreed terms.
2. LICENSE
2.1 Fiserv agrees to furnish Software to Client and does hereby grant to Client
a personal, non-exclusive, nontransferable (except as explicitly provided
elsewhere in this Agreement) License.
2.2 Client may change the Location in the event Client transfers its data
processing to a new location within the same country. Client will provide
Fiserv with 15 days advance notice of any proposed transfer of operations.
Assistance by Fiserv related to the transfer shall be chargeable at
Fiserv's then current professional service rates. Client shall reimburse
Fiserv for any out-of-pocket expenses incurred in the course of providing
such assistance.
2.3 Fiserv prohibits the copying of any portions of the Software System except
that Client may copy reasonable quantities of any standard end user
documentation; and may copy machine language code, in whole or in part, in
reasonable quantities, in printed or electronic form, for use by Client at
the Location for archive, back-up, or emergency restart purposes, or to
replace copy made on defective media. The original, and any copies of
Software, or any part thereof, shall remain Fiserv's property.
2.4 Client shall maintain any such copies and the original at the Location and
one Client archive site (`Archive Site) in the same country. Client may
transport or transmit a copy of Software from the Location or the Archive
Site to another location in the same country as the Location for back-up
use when required by Computer System malfunction or disaster recovery
purposes, provided that the copy or original is destroyed or returned to
the Location or Archive Site when the malfunction is corrected. Client
shall reproduce and include Fiserv's copyright and other proprietary
notices on all copies, in whole or in part, in any form, of the Software
System made as specified herein.
2.5 Client shall not decompile, disassemble, or otherwise reverse engineer the
Software System.
2.6 Third Party Software is provided to Client under the following supplemental
terms:
(i) Use of Third Party Software shall be restricted to use as part of the
Software System.
(ii) Fiserv and Third Party Software owners shall not be liable for any
damages, whether direct, indirect, incidental, or consequential
arising from the use of the Third Party Software.
(iii) Publication of benchmark tests of Third Party Software is permitted
only by a writing signed by an authorized officer of Fiserv and the
Third Party Software owner.
(iv) Third Party Software owners are hereby designated as third party
beneficiaries of this Agreement as it relates to their software. To
the extent allowed by a Supplier (as defined in Exhibit 2n) Fiserv
shall pass-through to Client any warranty a Supplier has granted to
Fiserv with respect to materials purchased pursuant to Exhibit 2n,
subject to the terms and conditions set forth in this Agreement,
including Exhibit 2n.
(v) Third Party Software is not specifically developed, or licensed for
use in any nuclear, aviation, mass transit, or medical application or
in any inherently dangerous applications. Third Party Software owners
and Fiserv shall not be liable for any claims or damages arising from
such use if Client uses the Software System for such applications.
2.7 Fiserv grants Client the right to Use any Software modifications furnished
or authorized by Fiserv pursuant to this Agreement.
3. LICENSE FEES
Client agrees to pay the license fees in accordance with the schedule set
forth in each Exhibit 1n.
4. PROFESSIONAL SERVICES TERMS
4.1 Fiserv agrees to provide access to Fiserv personnel for the provision of
professional services outlined in each Exhibit 1n (`Professional
Services'). All such services shall be provided in accordance with the
terms and conditions set forth below. Client may request Fiserv to provide
additions and changes to such services. Any such additions or changes shall
be provided only after the execution of a mutually agreed upon Change
Request.
4.2 Operational Support. Unless specified otherwise in Exhibit 1n, if requested
by Client, Fiserv agrees to provide Operational Support at the rates and
terms to be mutually agreed upon in writing at the time of Client's
request.
4.3 Business Requirements List. All professional services work to be performed
by Fiserv shall be based upon a Business Requirements List. Client shall
provide Fiserv with a Business Requirements List for each Modification or
other information requested by Fiserv for the performance of its
obligations under this Agreement. Fiserv shall review and suggest revisions
to such Business Requirements List on a timely basis.
4.4 Modifications listed in Exhibit 1n and estimates of costs and completion
dates for professional services, if any, are referenced solely for the
purpose of allowing Client to plan its budgets and are based upon the then
available information. Fiserv shall not be obligated to perform any work
until the Business Requirements List has been accepted by Fiserv and agreed
to by Client in writing, as evidenced by a signed PRDA.
4.5 Client agrees to pay Fiserv at mutually agreed upon rates (to be defined in
a PRDA) for services rendered in connection with Fiserv's review and
revisions to the Business Requirements List.
4.6 In the event Fiserv provides Modifications or other professional services,
such services shall be based on specifications created by Fiserv and
approved by Client (`Scope of Services'), as provided below.
(i) In the case of Modifications, Scope of Services shall consist of
developing the Functional Specifications created by Fiserv based on
the Business Requirements List. All other professional services shall
be based on the Scope of Services mutually agreed to for the project.
(ii) Fiserv shall not be obligated to perform any work until the Scope of
Services is approved in writing by Client, which approval shall not be
unreasonably withheld or unduly delayed.
(iii) Modifications, changes, enhancements, conversions, upgrades, or
additions to the agreed upon Scope of Services shall be added only
after the execution of a mutually agreed upon Change Request. In the
event the parties agree to add any such items, the Scope of Services
and the applicable Project Plan shall automatically be modified to the
extent necessary to allow for the inclusion of the items.
4.7 Project Plan. When warranted by the size and complexity of the project,
Fiserv shall develop a project plan for the professional services to be
provided by Fiserv ("Project Plan'). Each such mutually agreed upon Project
Plan shall contain a listing of the nature and timing of tasks for the
project, some of which are to be performed by Fiserv and some by Client.
Changes to the Project Plan shall be made only after the execution of a
mutually agreed upon Change Request.
4.8 In the event that Fiserv is to provide installation, conversion, or
training services to Client for the Software, the fees therefor shall be as
specified on each Exhibit 1n. The nature and timing of any installation,
conversion and training shall be as specified in the Project Plan and
mutually agreed upon by the parties.
4.9 If Client is unable to provide access to required facilities or personnel
or is unable to meet its tasks assigned on a Project Plan in a timely
manner, Fiserv will endeavor to reschedule tasks to minimize non-productive
time. If such non-productive time is expected to be significant, Fiserv
will endeavor to reassign its personnel to other suitable work. All
non-productive time which may be chargeable to Client by Fiserv shall be
identified in the mutually agreed upon Change Request.
4.10 Delivery. Unless otherwise mutually agreed, upon delivery of each
Modification, Client shall have up to 30 days to perform user testing.
Client acknowledges Modifications can only be adequately tested in Client's
system environment and Client agrees to reimburse Fiserv for all assistance
during Client's user testing phase. Client shall thoroughly test the
Modification in Client's system environment and promptly report on Fiserv's
then current service request form any Specification Non-conformity
disclosed by such user testing or Use to Fiserv with reasonable
particularity, including applicable supporting documentation such as screen
prints, user documentation, diagrams, etc. to allow Fiserv to properly
analyze the issue. Fiserv shall correct any Specification Nonconformities
disclosed by such testing or Use without further charge to Client within 14
days of Client's notice or a mutually agreed upon time.
4.11 Acceptance. Unless specified otherwise in the applicable PRDA,
Modifications shall be deemed to have been accepted by Client 30 days
following delivery or by the live operation and Use of the Modification for
a period of 10 days, whichever occurs first.
4.12 Client agrees that it is responsible for providing Fiserv remote electronic
access to Client's environments for the provision of professional services.
Fiserv agrees to comply with Client's access and security requirements
while performing such professional services, provided that (i) Client
provides Fiserv with all such requirements in writing not less than 30 days
prior to Fiserv's personnel arrival onsite, (ii) all such requirements are
reasonable in nature and do not conflict with Fiserv policies and
practices, and (iii) Client shall reimburse Fiserv for any costs incurred
by Fiserv in complying with such Client's requirements.
5. MAINTENANCE SERVICES TERMS
5.1 Fiserv provides the following as part of Basic Maintenance Services to
Client:
(i) Telephone support 24 hours per day, 7 days per week for reporting of a
Non-conformity that causes the Software to be inoperable.
(ii) Up to 10 hours per month for telephone support during normal business
hours for reasonable operator support. Non-conformity support is not
included within this limitation. For telephone support in excess of 10
hours per month or for support provided outside of normal business
hours unrelated to a Non-conformity (`Extended Use'), Fiserv agrees to
notify Client of such Extended Use. In such event, Fiserv and Client
will decide on a mutually agreeable corrective action plan. Fiserv
reserves the right to invoice Client and Client agrees to pay for
Extended Use at Fiserv's then current Professional Service rates, in
the event Client fails to successfully implement the corrective action
evidenced by a cessation of such Extended Use.
(iii) Services to correct or resolve a Non-conformity, provided that such
Non-conformity is capable of reconstruction and is due to a defect in
the Software, are provided during Fiserv's normal business hours.
(iv) Fiserv may utilize remote diagnostic software and dial-up telephone
lines made available by Client in providing these services. Client
shall cooperate and assist Fiserv to expedite resolution of all
Non-conformities.
(v) Software program fixes to correct Non-conformities for the current and
last prior Software release made generally available to all Fiserv
client's using the applicable Software will be provided within a
reasonable period of time upon notice by Client. Client agrees to
provide Fiserv with reasonable assistance and information in
connection therewith.
(vi) Software Upgrades.
5.2 Client agrees to properly document all Nonconformities using Fiserv's then
current service request form, and provide adequate supporting
documentation. Fiserv will utilize such documentation to evaluate,
prioritize, and resolve Client support issues. Accurate and complete
documentation by Client is a prerequisite of all support issues. Failure to
provide adequate supporting documentation may result in delayed resolution
of a Non-conformity.
5.3 Should Fiserv's review of the Non-conformity indicate, in Fiserv's
reasonable opinion, that the reported problem is not a Software defect but
is due to other problems including, but not limited to, input not in
accordance with specifications, Client's abuse or misuse of the Software
System, or by a modification or addition to the Software System not
performed by Fiserv, or by Client's failure to properly maintain the
Computer System or to install the required system software release as
instructed by Fiserv, then:
(i) Client agrees to reimburse Fiserv for the related costs of work
performed by Fiserv in investigating the problem at Fiserv's then
current professional service rates, and
(ii) Fiserv, at Client's request, shall advise Client whether Fiserv can
correct or assist in resolving such problem, and the terms under which
Fiserv shall undertake the same. Upon written acceptance by Client,
Fiserv shall correct or assist in resolving the problem in accordance
with such terms.
5.4 Special Maintenance Fees for Special Maintenance Services, if selected by
Client, shall be designated on each Exhibit 1n, the PRDA or similar work
authorization.
5.5 Services in addition to those defined in or requested under this Agreement
may be made available on a time-and-materials basis at Fiserv's then
current professional services rates and as mutually agreed pursuant to
Section 4 of this Agreement. Such additional services may include, without
limitation,
(i) On-site support.
(ii) Installation of Upgrades.
(iii) Training for Upgrades.
(iv) Retrofit and integration services.
5.6 Unless explicitly stated otherwise in an Exhibit 1n, the initial
Maintenance Fee, specified in each Exhibit 1n, is subject to annual
increases on the anniversary date of the Maintenance Start Date. Annual
increases shall be limited to the lesser of 7.5% or the change in the U.S.
Department of Labor, Consumer Price Index (CPI) for the Urban Wage Earners
and Clerical Workers, All Cities, (1982 = 100) for the 12 month period
preceding the anniversary date. Maintenance Fees shall also be subject to
increase following delivery of , modifications or additions to the Software
or changes in the numbers of accounts processed, user seats, or other fee
determinant. Fiserv may also increase Maintenance Fees in the event that
Fiserv implements major system enhancements to comply with changes in law,
government regulation, or industry practices.
5.7 Client agrees to train current and future employed staff members on the
technical and user operations of the Software.
5.8 Client shall obtain and maintain at its own expense such data processing
and communications equipment and supplies as may be necessary or
appropriate to facilitate the proper use of the Software System.
5.9 Network-related problems are not covered under Basic Maintenance Service.
In the event Fiserv does provide such service, Client agrees to pay
Fiserv's then current professional service rates.
6. TERM
6.1 The term of this Agreement and the licenses granted hereunder shall begin
on the Effective Date and continue in perpetuity unless terminated earlier
as provided herein.
6.2 The provision of Basic Maintenance Services by Fiserv shall begin on the
earlier of (i) the first day of the CBS Live Conversion or (ii) March 15,
2007, ("Maintenance Start Date"), and shall continue for a period of 5
years ("Initial Term"). For purposes of the foregoing, the "CBS Live
Conversion" shall be the date the first live account is processed on any
"CBS Core Application Subsystem" listed in the Software License section of
Exhibit 1A. The provision of maintenance services by Fiserv shall renew for
a successive 3-year term (`Initial Renewal Term"), and thereafter, for
successive 1-year terms (`"Subsequent Renewal Term"),(collectively,
"Renewal Term"), at Fiserv's then current fees for all modules then
licensed unless either party provides 180 days prior written notice to the
other party prior to the expiry of the Initial Term or then current Renewal
Term.
7. EQUIPMENT TERMS
7.1 Client agrees to purchase, and Fiserv agrees to sell, Equipment described
in each Exhibit 2n. Client understands that Fiserv is acting as an
independent sales organization representing each manufacturer or supplier
identified in each Exhibit 2n.
7.2 Client also understands and agrees that Fiserv's ability to obtain
Equipment may be subject to availability and delays due to causes beyond
Fiserv's control. Fiserv shall promptly place any orders submitted under
this Agreement with each manufacturer or supplier and shall, at Client's
direction, request expedited delivery whenever available.
7.3 Client shall be responsible for appropriate property insurance for all
equipment, whether Client-owned or Fiserv-owned, within Client's premises.
7.4 On Client's behalf, Fiserv shall arrange for Equipment delivery to the site
or sites (collectively, "Installation Site") designated by Client on each
Exhibit 2n on or about the date ("Delivery Date") requested by Client. In
the absence of shipping instructions, Fiserv shall select a common carrier
on Client's behalf.
7.5 Fiserv shall arrange for Equipment installation in consideration of the
Installation Fees listed on each Exhibit 2n. Client shall not perform any
installation activities without Fiserv's written consent. Client shall
provide Fiserv or its designee access to the Equipment and Installation
Site until installation is completed. Fiserv agrees to comply with Client's
access and security requirements while performing Services on Client site,
provided that (i) Client provides Fiserv with all such requirements in
writing not less than 30 days prior to Fiserv's personnel arrival onsite,
(ii) all such requirements are reasonable in nature and do not conflict
with Fiserv policies and practices, and (iii) Client shall reimburse Fiserv
for any costs incurred by Fiserv in complying with such Client's
requirements. If a suitable installation environment is not provided by
Client, then Fiserv shall be required to perform only as many normal
installation procedures as it deems to be practicable within the available
facilities. Equipment installation will take place during normal Fiserv
business hours, Monday through Friday, exclusive of Fiserv holidays, unless
otherwise agreed by Fiserv.
7.6 Client shall provide a suitable installation environment for Equipment as
specified by Fiserv or its agents and any and all other specifications
provided to Client by the manufacturer, supplier, or Fiserv. Client shall
also be responsible for furnishing all labor required for unpacking and
placing each item of Equipment in the desired location for installation.
Client shall be responsible for physical planning including, but not
limited to, floor planning, cable requirements, and safety requirements in
accordance with the installation manual and any and all applicable
building, electrical, or other codes, regulations, and requirements. All
such physical planning shall be completed on or before the Delivery Date.
7.7 All prices shown on each Exhibit 2n are F.O.B. at manufacturer's or
supplier's plant. All transportation, rigging, drayage, insurance, and
other costs of Equipment delivery to the Installation Site shall be
itemized on an invoice submitted to Client and shall be paid by Client.
Risk of loss shall pass to Client upon shipment.
7.8 Title to Equipment shall remain with Fiserv until all payments for
Equipment are made by Client and, until such time, Client agrees that it
shall not sell, transfer, pledge, or otherwise dispose of Equipment without
Fiserv's prior written consent.
7.9 Client agrees Fiserv retains a security interest in all Equipment and the
proceeds thereof until the purchase price due Fiserv are paid in full.
Client shall execute any instruments or documents Fiserv deems appropriate
to protect the security interest and, in any event, this Agreement shall
constitute a financing agreement within the meaning of Article 9 of the
Uniform Commercial Code and a copy of this Agreement may be filed at any
time after signature by Fiserv as a financing statement for that purpose.
In the event of default in payment or other breach by Client, Fiserv shall
have all rights and remedies of a secured creditor upon default as provided
by applicable law.
7.10 Equipment shall be deemed accepted when it passes Fiserv's, the
manufacturer's, or supplier's standard post-installation test procedures at
the Installation Site.
7.11 Fiserv warrants that Client will acquire good and clear title to Equipment
free and clear of all liens and encumbrances. Fiserv hereby assigns to
Client all applicable Equipment warranties the manufacturer or supplier has
granted to Fiserv. Client hereby agrees to all of the terms and conditions
applicable to those warranties and acknowledges that:
(i) none of the manufacturer, supplier, or Fiserv warrants that Equipment
use will be uninterrupted or error free; and
(ii) manufacturer's or supplier's warranties, and the assignment of such
warranties by Fiserv to Client, shall not impose any liability on
Fiserv due to the services or assistance provided to Client by Fiserv
with respect thereto.
7.12 Unless the parties agree otherwise, Fiserv shall not be responsible for the
provision of any Equipment maintenance or repairs or of any Equipment parts
or replacements.
8. PAYMENT
8.1 Fiserv shall invoice, and Client shall pay, any Taxes related to products
and services provided by Fiserv to Client, however designated, that are
levied by any taxing authority on the products and services provided by
Fiserv. Fiserv shall remit such Taxes to the appropriate taxing
authorities.
8.2 Each payment to be paid to Fiserv hereunder is due 30 days following
receipt of the invoice from Fiserv and shall be paid by Client as specified
on each Exhibit 1n.
8.3 In the event the whole or any part of any invoice remains unpaid after
payment is due, Client shall pay a late charge of 1.5% per month; except
that Client may withhold any portion of an invoiced amount that is disputed
in good faith and without assessment of late charges, provided that (i)
Client gives Fiserv written notice and explanation of such good faith
dispute within 15 days after receipt of the invoice, (ii) Client promptly
commences and diligently pursues efforts to resolve the dispute with Fiserv
in a timely manner, and (iii) Client pays Fees due on resolved disputes
within 15 days after resolution is reached. Subject to the provision in the
preceding sentence, Client agrees that it shall neither make nor assert any
right of deduction or set-off from fees or other charges on invoices
submitted by Fiserv.
8.4 Except as otherwise expressly provided herein, Client agrees to pay the
reasonable travel and living expenses of any employees of Fiserv and its
authorized contractors who render services at either the Location or any
other Client site in connection with the activities described in this
Agreement. All expenses shall be itemized on invoices submitted by Fiserv.
9. PERFORMANCE
9.1 Client shall give Fiserv reasonable access to the Location, Software, and
Computer System to enable Fiserv to provide Services and shall make
available information, facilities, personnel, and services reasonably
required by Fiserv for the performance of its obligations hereunder. Fiserv
agrees to comply with Client's access and security requirements while
performing Services on Client site, provided that (i) Client provides
Fiserv with all such requirements in writing not less than 30 days prior to
Fiserv's personnel arrival onsite, (ii) all such requirements are
reasonable in nature and do not conflict with Fiserv policies and
practices, and (iii) Client shall reimburse Fiserv for any costs incurred
by Fiserv in complying with such Client's requirements.
9.2 The Software shall be deemed accepted when it passes the Fiserv test
procedures at the installation site.
9.3 Work in determining the nature of any problem or in making Software
corrections, amendments, or additions may be carried out at Fiserv's site
or the Location, at Fiserv's reasonable discretion.
9.4 Client agrees to maintain the Computer System, Software, and Third Party
Software in accordance with Fiserv's then current specified minimum
configuration during the term hereof, or contract with Fiserv to so
provide.
9.5 Client shall be responsible for ensuring that its systems are Year 2000
compliant and capable of passing and/or accepting date formats from and/or
to the Software.
10. WARRANTIES
10.1 Fiserv warrants that the Software will perform in accordance with its
functional specifications when operated in the specified operating
environment as described in the Documentation. During the period beginning
from the delivery (i.e., shipment) of Software to the Maintenance Start
Date, Fiserv will provide replacements or corrections to any portion of the
Software that does not so perform where such failure is material, provided
Fiserv is notified in writing. This warranty shall not apply if the problem
is caused by unauthorized modification to the Software System, use of the
Software in combination with non-Fiserv provided software, or by incorrect
Use. Client acknowledges that the warranties given by Fiserv are
conditional upon the procurement and maintenance by Client of the Computer
System in accordance with the then current specified configuration.
10.2 Fiserv's sole obligation under the warranty stated in the foregoing
paragraph shall be to repair or replace defective or Non-conforming
portions of the Software at its own expense and within a reasonable time.
10.3 Fiserv warrants that it has the right to license the Use of the Software.
10.4 Fiserv warrants that the Software is Year 2000 compliant.
10.5 Fiserv warrants that the Services described in this Agreement shall be
performed in a workmanlike manner and in accordance with standards
applicable to the financial software services industry.
10.6 THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY
WARRANTIES MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY
EXPRESSLY WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11. INDEMNITY
11.1 Fiserv shall indemnify Client and hold it harmless against any claim or
action that alleges Use of the Software infringes a patent, copyright, or
other proprietary right of a Third Party enforceable in the Location.
Client agrees to notify Fiserv promptly in writing of any such claim and
grants Fiserv sole right to control the defense and disposition of such
claim.
11.2 If, as a result of such claim, Fiserv or Client is permanently enjoined
from using a portion of the Software by a final, non-appealable decree,
Fiserv, at its sole option and expense, may (i) procure for Client the
right to continue to use the affected portion of the Software or (ii)
provide a replacement or modification for the affected portion of Software
so as to settle such claim. If such Software modification is not reasonably
practical in Fiserv's sole opinion, Fiserv may discontinue and terminate
the affected portion of this License upon written notice to Client and
shall refund to Client on a pro rata basis, based on a 60 month
amortization schedule, the Total License Fee paid to Fiserv for the
affected portion of the Software. In making this determination, Fiserv will
give due consideration to all factors, including financial expense.
11.3 The foregoing states Fiserv's entire liability for the infringement of any
copyrights, patents, or other proprietary rights by the Software or any
part thereof, and Client hereby expressly waives any other liabilities on
the part of Fiserv arising therefrom.
11.4 Fiserv shall have no liability for any claim based upon
(i) Use of any part of Software in combination with materials, software,
or equipment not provided by Fiserv; or
(ii) modifications made by Client or any Third Party.
12. LIMITATION OF LIABILITY OF THE PARTIES
12.1 Each party shall indemnify and hold the other harmless against any
(i) loss of or any damage to any tangible property or
(ii) injury to or death of any person;
caused by the negligence of, breach of statutory duty by, or willful
misconduct of the indemnifying party's employees, agents, or
sub-contractors.
12.2 FISERV SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FISERV'S AGGREGATE LIABILITY
FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT FOR ANY
REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO THE
TOTAL LICENSE FEE PAID BY CLIENT TO FISERV FOR THE APPLICABLE SOFTWARE
RESULTING IN SUCH LIABILITY AS OF THE DATE ON WHICH SUCH CAUSE OF ACTION
ACCRUED. NOTWITHSTANDING THE FOREGOING, FISERV'S AGGREGATE LIABILITY FOR A
DEFAULT RELATING TO THIRD PARTY EQUIPMENT OR THIRD PARTY SOFTWARE PROVIDED
BY FISERV SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO FISERV FOR THE
THIRD PARTY EQUIPMENT OR THIRD PARTY SOFTWARE.
13. TITLE
13.1 Nothing in this Agreement shall convey to Client any title to or any rights
in the Software including but not limited to all proprietary rights or
ownership of any modifications or derivations thereof. Client's sole right
in relation to the Software or any modifications is to Use the same for the
duration of this Agreement under the terms and conditions contained herein.
Client shall have a period of exclusive use of those Modifications funded
solely by Client, provided that such exclusive use (i) shall be expressly
stated in the mutually agreed upon PRDA or similar work authorization; (ii)
shall only apply to the South Bend, Indiana market; and (iii) shall expire
upon the earlier of (a) 3 years following delivery of the applicable
Modification; or (b) the date in which the Modification is incorporated
into the Software and made generally available to other Fiserv clients. In
the event of the latter, Fiserv shall discontinue billing client Special
Maintenance Fees related to the Modification upon release of the Software
version containing such modification.
13.2 Software and all Software modifications, enhancements, derivations or
upgrades, and all patents, copyrights, or other proprietary rights related
thereto are Fiserv's sole and exclusive property, whether made by Fiserv,
Client, or any of their employees or agents. Client shall execute documents
reasonably required by Fiserv to perfect such rights.
13.3 All information, reports, studies, object or source code, flow charts,
diagrams, and other tangible or intangible material of any nature
whatsoever produced by or as a result of any of the (i) services performed
hereunder by Fiserv or jointly with Client, or (ii) related to any products
provided hereunder by Fiserv, shall be the sole and exclusive property of
Fiserv or its corporate parent. Client shall be entitled to Use all such
work product produced by Fiserv in accordance with the terms and conditions
hereof. For purposes of clarity, the foregoing does not include Client's
customer data, which shall remain the property of Client.
14. NON-DISCLOSURE
14.1 Fiserv has granted Client the limited right to use the Software as provided
herein. Client acknowledges that
(i) the Software, including all specifications, work product, translations
and other materials developed by Fiserv; and
(ii) the terms and conditions of this Agreement
contain Fiserv's highly confidential, unique, secret, and valuable
information. Client agrees that it shall not sell, transfer, publish,
disclose, display or otherwise make available to any Third Party the
Software, any materials relating to or forming a part of the Software or
any other Fiserv proprietary information without Fiserv's prior written
consent. Client agrees to secure and protect the Software and proprietary
information and to take appropriate action by written agreement with its
employees who are permitted access to such materials to satisfy its
obligations hereunder. Client further agrees to use its best efforts to
assist Fiserv in identifying and preventing any use or disclosure of any
portion of the Software or proprietary information. As a precondition to
Client's request to Fiserv for consent to disclose the Software, in whole
or in part, to a Third Party, Client shall obtain from such party an
executed Exhibit 3 which shall not be modified without Fiserv's prior
written consent. All Client obligations and undertakings relating to
confidentiality and nondisclosure shall survive the termination of this
Agreement for any reason.
14.2 Fiserv shall protect any Client Confidential Information from disclosure
with the same degree of care afforded by Fiserv to its own confidential
information. Not withstanding anything to the contrary herein, Fiserv
specifically agrees that it will not use any non-public personal
information about Client's customers in any manner prohibited by Title V of
the Gramm-Leach-Bliley Act. All Fiserv obligations and undertakings
relating to Client Confidential Information shall survive the termination
of this Agreement for whatever reason.
14.3 Client shall permit Fiserv's authorized representatives at all reasonable
times during Client's normal hours of operation to audit Client's Use at
the Location to determine that the provisions of this Agreement are being
faithfully performed. For that purpose, Fiserv shall be entitled to enter
into any of Client's premises and Client hereby irrevocably grants
authority to Fiserv and authorized representative to enter such premises
for such purpose. Any such audit shall be conducted in such a manner as to
minimize the disruption to Client's business and/or Software Use. Where
reasonably practicable, Client shall permit Fiserv to perform audits, not
more than twice yearly, through the use of automated monitoring systems,
system generated reports, or other auditing methods.
14.4 Client shall promptly notify Fiserv if Client becomes aware of any breach
of confidence relating to Software or other Fiserv proprietary information
and give Fiserv all reasonable assistance in connection with Fiserv's
investigation of same.
15. TERMINATION
15.1 The termination of this Agreement shall automatically, and without further
action by Fiserv, terminate and extinguish the license, and all rights in
and to Software shall automatically revert irrevocably to Fiserv. Fiserv
shall have the right to take immediate possession of Software and all
copies thereof wherever located without further notice or demand.
15.2 Client may terminate the Agreement in the event of a material default by
Fiserv not cured within a reasonable cure period (with the minimum being 90
days if no other cure period is stated) after notice to Fiserv specifying
the nature of the default with reasonable particularity.
15.3 If Client violates any of the Non-Disclosure, Non-Assignment, or License to
Use provisions of this Agreement and fails to remedy any such breach within
5 days of notice thereof from Fiserv, Fiserv may terminate this Agreement
without further notice.
15.4 If Client violates or fails to perform any of the terms or conditions other
than those specifically expressed in Sub-section 15.3 and fails to remedy
any such breach within 90 days of notice thereof from Fiserv, or if Client
shall become insolvent or ceases to do business, then Fiserv may give
notice declaring this Agreement is terminated at the expiration of such
notice period.
15.5 Exercise of either party's right of termination shall not prejudice legal
rights or remedies either party may have against the other in respect of
any breach of the terms of this Agreement.
15.6 Client's failure to pay on a timely basis is cause for termination of this
Agreement and the licenses granted hereunder.
15.7 Convenience: Early Termination. Client may terminate this Agreement during
the Initial Term or any Renewal Term by paying a termination fee based on
the remaining unused term for Services. The amount of such termination fee
shall be determined by multiplying the average of Client's monthly invoices
for Services received by Client pursuant to the Agreement during the 6
month period preceding the effective date of termination (or if no monthly
invoice has been received, the sum of the billing for Services received or
to be received hereunder calculated as a monthly amount (for example,
annual maintenance will be divided by 12 to calculate the implied monthly
amount)) by the applicable termination percentage (as defined below) times
the remaining number of months in the term for Services. Client understands
and agrees that Fiserv losses incurred as a result of early termination of
the Agreement would be difficult or impossible to calculate as of the
effective date of termination since they will vary based on, among other
things, the number of clients using the Fiserv Services on the date the
Agreement terminates. Accordingly, the amount set forth in the first
sentence of this subsection represents Client's agreement to pay and
Fiserv's agreement to accept as liquidated damages (and not as a penalty)
such amount for any such Client termination. For purposes of clarity,
without limiting to the foregoing, Client shall pay Fiserv for all Services
performed through the date of termination pursuant to the terms of this
Agreement.
------------------------------------- -------------------------------------
If Termination occurs during the year Then, the applicable Termination %
specified in the Initial Term: shall be
------------------------------------- -------------------------------------
Year 1 70%
------------------------------------- -------------------------------------
Year 2 70%
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Year 3 80%
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Year 4 90%
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Year 5 100%
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-------------------------------------- ------------------------------------
If Termination occurs during the year Then, the applicable Termination %
specified in the Initial Renewal Term: shall be
-------------------------------------- ------------------------------------
Year 1 80%
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Year 2 90%
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Year 3 100%
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-------------------------------------- -----------------------------------
If Termination occurs during the year Then, the applicable Termination %
specified in any Subsequent shall be
Renewal Term:
-------------------------------------- ------------------------------------
Year 1 100%
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16. NON-ASSIGNMENT
16.1 In the event of the sale of 50% or more of Client's common stock, or the
sale of all or substantially all of Client's assets, or in the event of any
merger in which Client is not the surviving organization, (a "Change of
Control"), Client may transfer this Agreement with Fiserv's prior written
consent, which shall not be unreasonably withheld, provided that (1) if the
Software System will be used in a different or expanded manner after the
Change of Control, both parties mutually agree upon terms, conditions, and
fees for transfer and such use; or (2) if the Software System will be used
in the same manner as used prior to the Change of Control, then the
surviving entity may continue to use the Software System under the terms,
conditions and fees specified in this Agreement and the Exhibits providing
Client is covered by the Basic Maintenance Services as defined herein. .
16.2 If the organization acquiring Client's common stock, assets, or surviving a
merger is an organization deriving more than 5% of its gross revenues from
providing service bureau, time share, computer software consulting
services, computer software licensing, or computer hardware sales, Fiserv
shall be under no obligation to consent to such transfer.
16.3 Except as expressly provided above, neither party may assign or transfer
its rights, duties, or obligations under this Agreement to any person or
entity, in whole or in part, without the other party's prior written
consent, which consent shall not be unreasonably withheld or delayed,
except that Fiserv may assign this Agreement to an affiliate without the
consent of Client.
17. ENTIRE AGREEMENT
17.1 This Agreement, including its Exhibits 1 - 3, which are hereby expressly
incorporated herein, constitutes the complete and exclusive statement of
the agreement between the parties as to the subject matter hereof and
supersedes all previous agreements with respect thereto. This Agreement may
not be amended or modified except by a written instrument executed by both
parties.
17.2 Each party hereby acknowledges that it has not entered into this Agreement
in reliance upon any representation made by the other party but not
embodied herein.
18. NOTICES
18.1 Any written notice required or permitted to be given hereunder shall be
given by: (i) Registered or Certified Mail, Return Receipt Requested,
postage prepaid; (ii) facsimile or email confirmed by Fiserv Contract
Administration; or (iii) nationally recognized courier service to the other
party at the addresses listed on the cover page or to such other address or
person as a party may designate in writing. All such notices shall be
effective upon receipt.
19. DISPUTE RESOLUTION
19.1 General. Except with respect to disputes arising from a misappropriation or
misuse of either party's proprietary rights, any dispute or controversy
arising out of this Agreement, or its interpretation, shall be submitted to
and resolved exclusively by arbitration under the rules then prevailing of
the American Arbitration Association, upon written notice of demand for
arbitration by the party seeking arbitration, setting forth the specifics
of the matter in controversy or the claim being made. The arbitration shall
be heard before an arbitrator mutually agreeable to the parties; provided,
that if the parties cannot agree on the choice of arbitrator within 10 days
after the first party seeking arbitration has given written notice, then
the arbitration shall be heard by three arbitrators, one chosen by each
party, and the third chosen by those two arbitrators. The arbitrators will
be selected from a panel of persons having experience with and knowledge of
information technology and at least one of the arbitrators selected will be
an attorney. A hearing on the merits of all claims for which arbitration is
sought by either party shall be commenced not later than 60 days from the
date demand for arbitration is made by the first party seeking arbitration.
The arbitrator(s) must render a decision within 10 days after the
conclusion of such hearing. Any award in such arbitration shall be final
and binding upon the parties and the judgment thereon may be entered in any
court of competent jurisdiction.
19.2 Applicable Law. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the substantive
law of the State of New York, without reference to provisions relating to
conflict of laws. The arbitrators shall not have the power to alter,
modify, amend, add to, or subtract from any term or provision of this
Agreement, nor to rule upon or grant any extension, renewal, or continuance
of this Agreement. The arbitrators shall have the authority to grant any
legal remedy available had the parties submitted the dispute to a judicial
proceeding.
19.3 Situs. If arbitration is required to resolve any disputes between the
parties, the proceedings to resolve the first such dispute shall be held in
South Bend, Indiana,, the proceedings to resolve the second such dispute
shall be held in Milwaukee, Wisconsin, and the proceedings to resolve any
subsequent disputes shall alternate between South Bend, Indiana and
Milwaukee, Wisconsin.
20. GENERAL TERMS
20.1 The section headings used herein are inserted only as a matter of
convenience and for reference and shall not affect the construction or
interpretation of this Agreement.
20.2 Neither party shall be responsible for delays or failures in performance
resulting from acts or circumstances reasonably beyond the control of that
party, provided that either parties payment obligations shall not be
excused under this section.
20.3 This Agreement shall be construed and enforced under the laws of the State
of New York, without reference to its provisions relating to conflict of
laws. The United Nations Convention of Contracts for the International Sale
of Goods shall not apply to this Agreement.
20.4 No action, regardless of form, arising out of this Agreement shall be
brought by Client more than 2 years after such cause of action shall have
accrued.
20.5 The prevailing party in an action brought against the other to enforce the
terms of this Agreement or any rights or obligations hereunder, shall be
entitled to receive its reasonable costs and expenses of bringing such
action including its reasonable attorneys' fees.
20.6 If any provision of this Agreement is held to be unenforceable, the other
provisions shall nevertheless continue in full force and effect.
20.7 The failure of either of the parties to insist upon strict performance of
any of the provisions of this Agreement shall not be construed as the
waiver of any subsequent default of a similar nature
IN WITNESS whereof this Agreement has been executed as of the Effective Date by
the following duly authorized representatives:
CLIENT: 1ST SOURCE BANK
/s/JOHN B. GRIFFITH 11/29/05
- ------------------- --------
Signature Date of Signature
JOHN B. GRIFFITH 100 North Michigan Street
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Printed Name Address (Line 1)
SVP and GENERAL COUNSEL South Bend, IN 46601
- ----------------------- -------------- -----
Title Address (Line 2)
griffith@1stsource.com
EMail Address Telephone
FISERV SOLUTIONS, INC.:
/s/DAVID SANTI 12/01/05
- -------------- --------
Signature Date of Signature
DAVID SANTI 600 Colonial Center Parkway
- ----------- ---------------------------
Printed Name Address (Line 1)
PRESIDENT CBS US Lake Mary, Florida 32746
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Title Address (Line 2)
407-513-5200
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EMail Address Telephone