FISERV
License and Service Agreement
This LICENSE AND SERVICE AGREEMENT numbered 3810163 is entered
into as of the Effective Date below by and between
Fiserv
a Corporation whose registered office is located at
2601 Technology Drive
Orlando, FL 32804
(hereinafter called 'Company') and
Heartland Financial USA, Inc.
whose registered office is located at
1398 Central Avenue
Dubuque, Iowa 52001
(hereinafter called 'Client')
This Agreement shall be construed and enforced under the laws of
the State of Florida.
Effective Date: June 21, 1996
Witnesseth:
WHEREAS, Company is the licensor of the Software System (as
hereinafter defined), and
WHEREAS, Client wishes to install and Use (as hereinafter
defined), the Software System in Client's premises.
NOW, THEREFORE, the parties hereto agree from the Effective Date
as follows:
1. Definitions
The following are the definitions of various terms used in
this Agreement:
1.1 'Accounts' means the total number of individually designated
accounts processed by the Transaction, Time, and Loan
subsystem of the Software System.
1.2 'Basic Maintenance Services' means services to correct a
Nonconformity or Major Nonconformity in the original,
unmodified Software System. Basic Maintenance Services are
available only with respect to the current and last prior
release of the Software System.
1.3 'Business Requirements' means the description of the
Client's business needs and the functionality required.
1.4 'Client Confidential Information' means any confidential
information concerning Client's business, that is labeled as
such and all data pertaining to Client's customers.
1.5 'Computer System' means that dedicated computer machinery
and manufacturer-supplied software identified on Schedule 2.
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 Company recommendations.
1.6 'Effective Date' means the date identified as such in this
Agreement as the date upon which this Agreement shall
commence.
1.7 'Enhancements' means modifications made to the Software
System which add program features or functions not
originally within the Software System and which are
generally provided upon payment of additional License Fees.
Company reserves the right to define which changes are
upgrades or separately priced enhancements.
1.8 'Functional Specifications' means the description of the
detailed functionality changes to product, account and
customer level processing.
1.9 'Location' means only those premises identified on Schedule
1.
1.10 'Maintenance Fee' means that fee for the time being in
effect for the provision of the Maintenance Services
hereunder.
1.11 'Nonconformity' means a failure of the Software System to
accurately process Client's data or to perform functions
described in Company's documentation.
(i) Level One: A Major Nonconformity which renders
the Software System inoperative.
(ii) Level Two: Any nonconformity which significantly
degrades the performance of the Software System or
which affects regulatory compliance, including, but not
limited to, the calculation of interest, fees and
balances, and errors affecting the accuracy of customer
statements.
(iii)Level Three: A nonconformity which has a
significant impact on the Client's ability to perform
its normal business functions and for which no
circumvent procedure is available.
(iv) Level Four: A nonconformity which negatively
impacts the ability of the Client to perform its normal
business functions but for which there is a relative
cost effective circumvent procedure available.
(v) Level Five: A nonconformity which does not fit
into any of the above categories.
1.12 'Professional Service Fees' means the greater of the sums of
amounts derived by multiplying either the minimum number of
days specified on Schedule(s) 1 or the number of days or
fractions of days worked within each grade by the daily fee
rate as defined on the Schedule(s) 1. Additional fees may
be raised in respect of hours worked outside these at the
request of Client at the rates previously agreed in writing
by Client.
1.13 'Software System' means the standard, unmodified computer
programs in object code, unless otherwise specified on
Schedule 1, and procedure statements in machine readable
form, together with one set of Company standard
documentation as listed on Schedule 1. The Software System
does not include separate, independent, and stand-alone
modules or subsystems which Client has developed and
maintained without Company's assistance.
1.14 'Special Maintenance Services' means any other services as
specified on Schedule 1.
1.15 'Specification Nonconformity' means a failure of the
modified Software System to operate in accordance with the
Functional Specifications.
1.16 'Taxes' means all sales, use, excise, value added, and other
taxes and duties however designated which are levied by any
taxing authority having jurisdiction over the Location.
Taxes shall not include any levies by any taxing authority
which are based upon the net income of Company.
1.17 'Third Party' means any party other than Company's employees
or subcontractors and Client.
1.18 'Total License Fee' means the total sum specified as such on
Schedule 1 for standard, unmodified modules of the Software
System. Any fees for modifications, enhancements, upgrades,
or additions to the Software System are excluded from this
Agreement unless otherwise specified.
1.19 'Upgrades' means changes made to maintain compatibility with
new system software releases or to improve upon previously
existing features and operations with the Software System.
This primarily includes program fixes to the existing
Software System.
1.20 'Use' means copying or loading any portion of the Software
System from storage units or media into any equipment for
the processing of data by the Software System once so
loaded, or the operation of any procedure or machine
instruction utilizing any portion of either the computer
program or instructional material supplied with the Software
System. Use is deemed to occur at the location where any of
the above processes happen. Use is limited to type of
operations described in Company documentation solely to
process Client's own work and that of majority-owned
financial institutions. Use specifically excludes any
service bureau or time-share services to minority-owned or
unaffiliated third parties without prior written consent by
Company and payment by Client of additional fees in
accordance with mutually agreed terms.
1.21 'Workday' means Company's working day for the purposes of
this Agreement, as specified on Schedule 1.
2. License to Use the Software System
2.1 Company agrees to furnish the Software System to Client and
does hereby grant to Client a non-exclusive, nontransferable
License to Use the Software System at the Location to
process the designated institutions, corporations or any
other legal entity, as specified on Schedule 1.
2.2 Client may change the Location, without cost to Client, in
the event Client transfers its data processing department to
a new location within the same country as the Location.
Client will provide Company with fifteen (15) days advance
notice of any proposed transfer of operations.
2.3 The Company, 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 the
Software System, or any part thereof, shall be the property
of Company.
2.4 Client shall maintain any such copies and the original at
the Location and one Client archive site in the same country
as the Location, which site is specified on Schedule 1.
Client may transport or transmit a copy of the Software
System 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, 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 Company's copyright and
other proprietary notices on all copies, in whole or in
part, in any form, of the Software System made in accordance
with this Section.
2.5 Company grants to Client the right to Use any modifications
furnished or authorized by Company pursuant to a separate
written agreement.
3. Professional Services Terms
3.1 In consideration of the payment to Company by Client of the
Fees and the cost of all items and services provided and any
other expenses incurred by Company in connection with this
Agreement, as defined on Schedule(s) 1, Company hereby
agrees to provide personnel of the grades, and between the
dates specified on Schedule(s) 1 to work on behalf of Client
in accordance with the terms and conditions set out below.
3.2 All work which is to be performed by Company hereunder shall
be based upon the preliminary Business Requirements listed
on Schedule 3. Client shall utilize Schedule 3 to provide
Company with all necessary information concerning its
requirements for modifications to the Software System or
other information requested by Company related to Company's
performance of its obligations under this Agreement. Any
estimates of costs and completion dates listed on the
Schedules are referenced solely for the purpose of allowing
Client to plan its budgets and schedules based upon the then
available information.
3.3 Company shall provide a Preliminary Project Plan based upon
the Business Requirements which shall be incorporated as
Schedule 4 when appropriate. Schedule 4 shall contain a
preliminary listing of the nature and timing of tasks for
the project, some of which are to be performed by Company
and some by Client. Company shall utilize reasonable
efforts to meet the dates set forth in the Project Plan or
any replacement thereof.
3.4 In the event that Company is to provide installation,
conversion or training to Client for the Software System,
the fees therefore shall be as specified on Schedule 1. The
nature and timing of any installation, conversion and
training shall be as specified in the Project Plan mutually
agreed upon by the parties.
3.5 In the event that Company is to provide modifications to the
Software System, the modifications shall be based upon
specifications created by Company and approved by Client as
provided below:
(i) During the phase referred to on the Project Plan
as "Functional Specifications", Company may develop
Functional Specifications based upon the descriptions
contained on Schedule 3 for Client's written approval.
Company shall not be obligated to perform any further
development work until Specifications have been
accepted in writing by Client which acceptance shall
not be unreasonably withheld or unduly delayed.
(ii) Modifications, changes, enhancements, conversions,
upgrades or additions to the Software System beyond
those stated in the Functional Specifications shall be
added only upon mutual written agreement. In the event
the parties agree to add any such items, the Project
Plan shall automatically be modified to the extent
necessary to allow for the implementation or provision
of the items.
(iii)The Project Plan shall also set forth the time
period after the acceptance of the Functional
Specifications within which Company shall prepare
"Functional Specifications" including an acceptance
test script for the adaptations described therein.
After Client's written acceptance of the Functional
Specifications, which acceptance shall not be
unreasonably withheld or delayed, Company shall
commence activities to modify the Software System for
use by Client in accordance with the Project Plan.
(iv) The Software System adaptations shall be deemed to
have been accepted by Client either upon the completion
of a formal Acceptance Test (as set forth in the test
scripts) or 30 days after delivery of the modified
Software System, whichever occurs first. Acceptance by
Client will not be unreasonably withheld or unduly
delayed. Client agrees promptly to notify Company in
writing (and with reasonable particularity) upon
conclusion of the Acceptance Test or earlier upon
discovery of any Specification Nonconformities
disclosed by such testing or use. Company shall
correct any Specification Nonconformities disclosed by
such testing without further charge to Client within a
reasonable time of Client's notice.
3.6 The Professional Services Fees are based on a workday as
defined on Schedule(s) 1. Additional Professional Services
Fees may be raised in respect of hours worked outside these
at the request of Client at the rates previously agreed in
writing by Client.
3.7 If support is primarily required in part days, Company may
notify Client that an hourly fee rate shall apply. The
hourly rate will be calculated pro-rata of the stated daily
rate unless otherwise agreed.
3.8 The daily rates quoted in the table will be valid for three
months from the effective date listed on the relevant
Schedule 1. Thereafter, they will be subject to change by
Company on one-month's notice.
3.9 A higher Professional Services Fee may be applied for an
individual whose support to Client has advanced to a new job
grade or after one month's notice if his general development
warrants a job upgrade by Company.
4. Maintenance Services Terms
4.1 In consideration of the payment to Company by Client of the
Maintenance Fee, Company agrees to furnish to Client
Maintenance Services as described and subject to the terms
and conditions contained in this Agreement.
4.2 Client may elect to receive Basic Maintenance Services
and/or Special Maintenance Services by designating the
services selected on Schedule 1.
4.3 Company shall maintain the Software System in compliance
with applicable Federal regulations.
4.4 Client agrees to train current and future employed staff
members on the technical and user operations of the Software
System. If the Client chooses, training can be provided at
the Company's location or at the Client's location at the
then current training rates. Phone training will also be
invoiced at the said rate.
4.5 As part of Basic Maintenance Services, Company shall provide
telephone support for reporting of Level One, Two, and Three
Nonconformities twenty-four hours per day, seven days per
week. Company shall provide services to correct or resolve
any other Nonconformity of the Software System only on
Workdays. Telephone cost for remote dial-up is Client's
expense. Company may utilize remote diagnostic software and
dial-up telephone lines in providing these services.
4.6 Company and Client shall promptly assign such technical
personnel as are necessary to identify, isolate, and
reconstruct any reported Level One Nonconformity and,
provided that such Nonconformity is capable of
reconstruction and is due to a defect in the Software
System, Company and Client shall utilize its best efforts to
correct or utilize a circumvent procedure to restore system
operation within twenty-four hours of Company's receipt of
the call or before the next occurrence of the nonconformity.
Company shall provide such services to Client free of any
additional fees and charges, including but not limited to
any reimbursement for travel of Company technical personnel
incurred during the resolution of the Major Nonconformity.
4.7 Company and Client shall use its best efforts to correct or
adopt a circumvent procedure with respect to a Level Two
Nonconformity within forty-eight hours of its receipt of the
Level Two Nonconformity report.
4.8 Company and Client shall use its commercially reasonable
best efforts to correct a Level Three Nonconformity within
five business days of its receipt of the Level Three
Nonconformity report by providing a circumvent procedure or
code, whichever is most reasonable.
4.9 Company shall use its commercially best efforts to adopt a
circumvent procedure with respect to a Level Four
Nonconformity within five (5) business days of its receipt
of the Nonconformity or the next occurrence of the issue.
If a circumvent procedure has been adopted, Company may
deliver a software coded correction to the Level Four
Nonconformity with the next scheduled base release of the
Software System that is still open for development changes
at the time of the notice of the Level Four Nonconformity.
4.10 Company shall use its commercially reasonable best efforts
to correct a Level Five Nonconformity with the next Software
System Release open for development at the time of the
notice of the Level Five Nonconformity.
4.11 Should Company's review of the Level One, Two or Three
Nonconformity indicate, in Company's reasonable opinion,
that the reported problem is not in the Software System but
is due to Client's abuse or misuse of the Software System,
or by a modification or addition to the Software System not
performed by Company (inclusive of the integration of Third
Party products with the software system), or by Client's
failure to properly maintain the Computer System or to
install the required system software release as instructed
by Company, then:
(i) Client agrees, if required by Company, to
reimburse Company the related costs of work performed
by Company in investigating the problem including
related system calculated on a time-and-materials basis
at Company's then standard professional service rates,
and
(ii) Company, on request of Client, shall advise Client
whether Company can correct or assist in resolving such
problem, and the terms under which Company shall
undertake the same, and on written acceptance by Client
shall correct or assist in resolving the problem in
accordance with such terms.
4.12 Maintenance Fees cover an average of ten (10) hours of
support per month. If the average for the month is greater
than fifty percent (50%) of the ten (10) hours, the Client
will be contacted and invoiced for hourly support at the
Company's current rates.
4.13 The initial Maintenance Fee and adjustment terms are
specified on Schedule 1. Maintenance Fees shall be subject
to annual increases and shall also be subject to increase
following delivery of new versions of, or modifications or
additions to the Software System or changes in the number of
accounts processed as specified in the License and Service
Agreement.
4.14 All such increases to the Maintenance Fee shall be
incorporated by amending Schedule 1.
4.15 Invoicing of the Maintenance Fee will commence as specified
on Schedule 1.
5. Use Of And Rights To Company's Work Product
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 services performed hereunder shall be the sole
and exclusive property of Company or its corporate parent.
Client shall be entitled to Use all such work product
produced by Company in accordance with the terms and
conditions of the License and Service Agreement. Nothing
contained in this Agreement shall be deemed to provide
greater rights with respect to the Software System, as
modified for Client's use herein, than those provided in the
License and Service Agreement.
6. Term
6.1 The term of the License grant shall begin on the Effective
Date and continue in perpetuity unless terminated earlier as
provided herein.
6.2 The provision of the Maintenance Services by Company shall
commence on the Effective Date specified on Page 1 hereto
and shall continue for a period of five years.
6.3 A Maintenance Services agreement may be renewed for
successive one year terms at Company's then current fees for
all modules then under License.
7. Delivery
The Company agrees to deliver the Software System to the
Location.
8. Payment
8.1 Company shall add to each invoice for reimbursement by
Client an amount equal to any applicable Taxes. Company
shall remit such Taxes to the appropriate taxing
authorities.
8.2 Each payment to be made to Company under this Agreement
shall be paid by Client, in funds as specified on Schedule
1, within fifteen (15) days of the date of an invoice in
respect thereof and the time of payment shall be of the
essence of this Agreement.
8.3 If the whole or any part of any invoice remains outstanding
for thirty (30) days or more, Client shall pay an agreed
financial charge calculated at the rate of one and one half
percent (1-1/2%) per part or complete month on the overdue
balance. Company shall pay the same financial charge on the
amount of any credit due to Client for sums previously paid
by Client which were the subject of a dispute resolved in
Client's favor.
8.4 Except as expressly provided in this Agreement to the
contrary, Client agrees to pay the reasonable travel and
living expenses of any employees of Company 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 itemised on invoices submitted by Company and shall be
due and payable upon presentation of each invoice as
provided herein.
9. Performance
9.1 Client shall give Company full access to the Location, the
Software System, and the Computer System to enable Company
to provide Services and shall make available information,
facilities, and services reasonably required by Company for
the performance of its obligations under this Agreement.
9.2 Work in determining the nature of any problem or in making
corrections, amendments, or additions to the Software System
may be carried out at Company's site or at the Location at
the discretion of Company.
9.3 Client agrees to maintain the Computer System and Software
System according to Company recommendations during the term
of this Agreement.
10. Rescheduling
If Client is unable to provide access to required facilities
or personnel or is unable to meet its tasks assigned on
Schedules 3 and 4 in a timely manner, Company will endeavor
to reschedule tasks to minimize the non-productive time
arising. All such non-productive time is chargeable to
Client. If such non-productive time is expected to be
significant, Company will endeavor to reassign its personnel
to other suitable work. In this event, Client will not be
charged for the time personnel were reassigned.
11. Schedules
The attached Schedules form part of and are included in this
Agreement.
12. Warranties
12.1 The Company warrants that the Software System will perform
the functions specified in the Documentation identified on
Schedule 1. For a period of ninety (90) days after
delivery, Company will promptly provide replacements or
corrections to any part of the Software System which does
not so perform where such failure is material and is
notified in writing to Company within such period. This
warranty shall not apply if the problem has been caused by
unauthorized amendment to the Software System, or by
incorrect Use. Company acknowledges that the Software
System is designed to operate on the Computer System
specified on Schedule 2 and both parties acknowledge that
the warranties given by Company are conditional upon the
procurement and maintenance by Client of the Computer System
in accordance with such configuration.
12.2 The Company's obligation under the warranty stated in the
foregoing paragraph shall be to repair or replace defective
or non-conforming parts of the Software System at its own
expense and within a reasonable time.
12.3 The Company warrants that it has the right to License the
Use of the Software System.
12.4 Company 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.
12.5 THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE
THE ONLY WARRANTIES MADE BY COMPANY. COMPANY DOES NOT MAKE,
AND CLIENT HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF COMPANY FOR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE
SOFTWARE SYSTEM.
13. Indemnity
13.1 Company shall indemnify Client and hold it harmless against
any claim or action which alleges that the use of the
Software System infringes a patent, copyright or other
proprietary right of a third person enforceable in the
Location. Client agrees that it will notify Company
promptly in writing of any such claim and grants Company
sole right to control the defense and disposition of such
claim.
13.2 If as a result of any such claim Company or Client is
permanently enjoined from using the Software System by a
final, nonappealable decree, Company at its sole option and
expense may procure for Client the right to continue to use
the Software System or at its sole option and expense, may
provide a replacement or modification for the Software
System so as to settle such claim. If modification of the
Software System is not reasonably practical in the sole
opinion of Company (reasonably given), Company shall
discontinue and terminate this License upon written notice
to Client and shall refund to Client all License Fees paid
to Company under this Agreement. In making this
determination, Company will give due consideration to all
factors including financial expense.
13.3 The foregoing states the entire liability of Company for the
infringement of any copyrights, patents or other proprietary
rights of a third person by the Software System or any parts
thereof, and Client hereby expressly waives any other
liabilities on the part of Company arising therefrom.
13.4 The Company shall have no liability for any claim which is
based upon
(a) the Use of any part of the Software System in
combination with Materials or software not provided by
Company; or
(b) modifications made by Client or any Third Party.
14. Limitation of Liability of the Parties
14.1 Each party shall indemnify and hold the other harmless
against any
(a) loss of or any damage to any tangible property or
(b) 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.
14.2 COMPANY 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
IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
ANY EVENT, THE LIABILITY OF COMPANY TO CLIENT FOR ANY REASON
AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO
THE AMOUNT OF ANY LICENSE FEE WHICH CLIENT HAS PAID TO
COMPANY AS OF THE DATE ON WHICH SUCH CAUSE OF ACTION
ACCRUES.
15. Title
15.1 Nothing in this agreement shall convey to Client any title
to or any rights in the Software System including but not
limited to all proprietary rights or ownership of any
modifications. The Client's sole right in relation to the
Software System or any modifications is to Use the same for
the duration of this Agreement under the terms and
conditions herein contained.
15.2 The Software System and all modifications, enhancements, or
upgrades made to the Software System and all patents,
copyrights, or other proprietary rights related to each of
the above are the sole and exclusive property of Company,
whether made by Company, Client, or any of their employees
or agents.
16. Non-Disclosure
16.1 Company has granted Client the limited right to use the
Software System as provided in this Agreement. Client
acknowledges that
(a) the Software System, including all specifications,
work product, translations and other materials
developed by Company, and
(b) the terms and conditions of this Agreement
contain highly confidential, unique, secret and valuable
information of Company. Client agrees that it shall not
decompile, disassemble or reverse engineer the Software
System and that it shall not sell, transfer, publish,
disclose, display or otherwise make available to others the
Software System, any materials relating to or forming a part
of the Software System or any other proprietary information
of Company without the prior written consent of Company.
Client agrees to secure and protect the Software System 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 that it shall use its best
efforts to assist Company in identifying and preventing any
use or disclosure of any portion of the Software System or
proprietary information. As a precondition of Client's
request to Company for consent to disclose the Software
System, in whole or in part, to a Third Party, Client shall
obtain from such party an executed Schedule 5. All
obligations and undertakings of Client relating to
confidentiality and nondisclosure, whether contained in this
Section or elsewhere in this Agreement, shall survive the
termination of this Agreement for any reason.
16.2 Company shall protect any Client Confidential Information
from disclosure with the same degree of care afforded by
Company to its own confidential information. All
obligations and undertakings of Company specified herein
with respect to Client Confidential Information shall
survive the termination of this Agreement for whatever
reason.
16.3 Client shall permit Company'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, Company shall be entitled to
enter into any of Client's premises and Client hereby
irrevocably grants authority to Company 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 the Use
of the Software System.
16.4 Client shall promptly notify Company if it becomes aware of
any breach of confidence relating to the Software System or
other Company proprietary information and give Company all
reasonable assistance in connection with Company's
investigation of same.
17. Termination
17.1 The termination of this Agreement shall automatically, and
without further action by Company, terminate and extinguish
the License, and all rights in and to the Software System
shall automatically revert irrevocably to Company. Company
shall have the right to take immediate possession of the
Software System and all copies thereof wherever located
without further notice or demand.
17.2 Client may terminate the Agreement in the event of a
material default by Company that is not cured within the
applicable cure period specified in this Agreement, or a
reasonable cure period (with the minimum being thirty (30)
days if no other cure period is stated) from receipt by
Company of written notice specifying the nature of the
default with reasonable particularity.
17.3 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 five (5) days of
notice thereof from Company, Company may terminate this
Agreement without further notice.
17.4 If Client violates or fails to perform any of the terms or
conditions other than those specifically expressed in Sub-
clause (17.3) and fails to remedy any such breach within
thirty (30) days of notice thereof from Company, or if
Client shall become insolvent or ceases to do business, then
Company may give a written notice declaring this Agreement
is terminated at the expiration of such notice period.
17.5 Exercise of the right of termination afforded to either
party 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.
17.6 Client's failure to pay on a timely basis is cause for
termination of this agreement and the License.
18. Force Majeure
Neither party shall be responsible for delays or failures in
performance resulting from acts reasonably beyond the
control of that party.
19. Non-Assignment
19.1 In the event of the sale of fifty percent (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, Client may
transfer this Agreement and the License upon the prior
written consent of Company, which consent shall not be
unreasonably withheld or delayed.
19.2 If the organization acquiring Client's common stock, assets
or surviving a merger is an organization deriving more than
five percent (5%) of its gross revenues from providing
service bureau, time share, computer software consulting
services, computer software licensing or computer hardware
sales, Company shall be under no obligation to consent to
such transfer.
19.3 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 prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed.
20. Entire Agreement
20.1 This instrument 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.
20.2 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.
20.3 This Agreement may not be modified or altered except by a
written instrument executed by both parties.
21. Variation
No variation of this Agreement shall be binding on either
party unless such variation is incorporated in a revised
Schedule to this Agreement and signed by the duly authorized
representatives of both parties.
22. Notices
Any notice required to be given hereunder shall be given by
sending the same
(a) by air courier to the addresses as first set out
above or to any subsequent address designated by either
party for the purpose of receiving notices pursuant to
this Agreement, and any notice so sent shall be deemed
to have been given three (3) business days after the
same was mailed; or
(b) by confirmed facsimile.
23. Action
No action, regardless of form, arising out of this agreement
shall be brought by Client more than two (2) years after
such cause of action shall have accrued.
24. General Terms
24.1 In the event that a dispute arises concerning the terms of
this Agreement the aggrieved party shall refer such dispute
to arbitration as specified herein. Such arbitration shall
be held in the City or suburbs of Orlando, Florida, in
accordance with the rules of the American Arbitration
Association pertaining to the Resolution of Computer
Disputes ("AAA Rules") then in effect. Judgment upon the
award rendered by the arbitrators may be entered in any
court having jurisdiction over the parties. The arbitrators
shall have the authority to grant any legal remedies that
would be available in any judicial proceeding instituted to
resolve a disputed matter.
24.2 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.
24.3 Company and Client agree that each provision in this
Agreement is deemed equally essential to each party.
24.4 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.
24.5 If any provision of this Agreement is held to be
unenforceable, the other provisions shall nevertheless
continue in full force and effect.
24.6 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 set forth on Page 1 by the following duly
authorized representatives:
For and on behalf of Client
By: \s\ Ed Everts
Title: Senior Vice President
For and on behalf of Company
By: \s\ Rosemary K. Hartman
Title: President, CBS USA
FISERV
License and Service Agreement No. 3810163
SCHEDULE 1
Company: Fiserv
Client: Heartland Financial USA, Inc.
Effective Date: June 21, 1996
License Section
A. Software System Based on Number of Accounts Processed No
Limitations.
1. Software System based on the processing of Heartland
Financial USA, Inc. and subsidiary's in which Heartland
Financial USA, Inc. owns fifty-one percent (51%) or more of
the preferred and/or common stock, herein released to as
additional subsidiary/subsidiaries.
2. The following modules of the FIserv Comprehensive Banking
Systems software to function on the Computer System listed
on Schedule 2.
CBS License Fees include:
Common File Subsystem
CIF Subsystem
General Ledger Subsystem
Universal Loan Subsystem
FTMS Subsystem
Time Subsystem
Transaction Subsystem
ACH Subsystem
Account Reconciliation Subsystem
CBS Chargeback Subsystem
Safe Deposit Subsystem
Item Processing Interface
InterVoice Interface (if Purchase Option exercised)
ATM Positive Balance File
DPSC Call Reporter II Interface
Asset Liability Extract
FAST Account Sales (22 workstations) (if Purchase
Option exercised)
3. System Documentation which are Instruction Manuals
for use of the Software System and for the completion
of documents for the Software System, including one set
of hard copy documentation.
B. Location:
1398 Central Avenue
Dubuque, IA 52001
Archive Site: TBD
C. Total License Fee
Modules License Fee
1.: License Fee for the following subsidiaries:
Dubuque Bank & Trust Company, Dubuque, IA
First Community Bank, FSB - Keokuk, IA
Galena State Bank, Galena, IL
Riverside Community Bank, Rockford, IL
a: CBS License Fees include:
CBS Core
Common File Subsystem
CIF Subsystem
General Ledger Subsystem
Universal Loan Subsystem
FTMS Subsystem
Time Subsystem
Transaction Subsystem
ACH Subsystem
Account Reconciliation Subsystem
CBS Chargeback Subsystem
CBS Core Total $225,000
b: Additional Products $ 10,000
Safe Deposit Subsystem $ 10,000
Item Processing Interface $ 20,000
ATM Positive Balance File $ 5,000
DPSC Call Reporter II Interface $ 10,000
Asset Liability Extract
c. Optional Products
(Pricing good for ten (10) business days from contract
signing)
Intervoice Interface $ 20,000
FAST Account Sales
(22 license object code only) $ 31,900
Total Additional Products $106,900
Total License Fee $331,900
2.: Additional subsidiaries (as defined in Schedule 1.a.1:
$2,800 per month for each additional subsidiary.
D. License Fee Payment Timetable
The Amount Payable is due according to the following
timetable:
D.1 For CBS Products listed in C.1.a and C.1.b
Date Event Amount Payable
Contract signing of products
listed in C.1.a and C.1.b 50%
Upon delivery of CBS Core
products listed in C.1.a 50%
D.2 For Optional Products in C.1.c
Date Event Amount Payable
Contract signing of products
listed in C.1.c 50%
Upon delivery of Optional
Products listed in C.1.c 50%
Professional Services Section
Workday 8 hours.
A. Professional Services Fees
Actual cost for professional Services Fees (excluding
reasonable travel and living expenses) associated with the
implementation and conversion for Heartland Financial USA,
Inc.'s subsidiaries listed in Schedule 1.C.1 will not exceed
$276,000.
A flat daily equivalent rate for Professional Services
during implementation and conversion: $900 per FTE (full-
time employee).
B. Professional Services Fees Payment Timetable
The Amount Payable is due according to the following
timetable:
Date Event Amount Payable
Monthly invoicing for actual
Professional Services rendered
and reasonable travel and
living expenses incurred.
Maintenance Services Section
A. Maintenance Services
Effective Date for Maintenance Services only:
The term of Maintenance Services is seventy-two (72) months
commencing at conversion of the first subsidiary in to a
production environment.
Modules: (Same as Section A.1.)
CBS Core Modules listed in Section C.1.a
Basic Maintenance:
$6,000
Special Maintenance:
Additional license fees listed in C.1.b $1,580
Annual Increase Amount:
Shall be limited to the lesser of ten percent
(10%) or the change in the U.S. Department of
Labor, Consumer Price Index (CPI) for Urban Wage
Earners and Clerical Workers, All Cities, (1982 =
100) for the twelve (12) month period preceding
the anniversary date.
B. Maintenance Fee Payment Timetable
$7,580 payable on the Effective Date above and monthly
thereafter.
This Schedule 1 replaces all previous Schedule 1 forms for the
Agreement as of the Execution Date noted below.
For and on behalf of Client
By \s\ Ed Everts
Title: Senior Vice President
For and on behalf of Company
By: \s\ Rosemary K. Hartman
Title: President, CBS USA
Execution Date: June 30, 1996
FISERV
License and Service Agreement No. 3810163
Schedule 2 Third Party Hardware and
Operating System Software
FISERV
License and Service Agreement No. 3810163
SCHEDULE 3 Business Requirements
(To Be Agreed Upon Findings of the
Operations Audit. This should
include each party's
responsibilities and a formal sign-
off procedure.)
Company: Fiserv
Client: Heartland Financial USA, Inc.
Effective Date:
Description: Lundy Tellermation Interface
Responsibility: FISERV
Estimated Man Days: 23 days
Personnel Grades: Analyst/Programmer
Estimated Cost: $20,240
Estimated Completion Date: 02/15/97
For and on Behalf of Client
By: \s\ Ed Everts
Title: Sr. Vice President
For and on Behalf of Company
By: \s\ Rosemary K. Hartman
Title: President, CBS USA
FISERV
License and Service Agreement No. 3810163
SCHEDULE 4 Preliminary Project Plan
Company FISERV
Client Heartland Financial USA, Inc.
Effective Date: June 21, 1996
For and on Behalf of Client
By: \s\ Ed Everts
Title: Senior Vice President
For and on Behalf of Company
By: \s\ John E. O'Malley
Title: President, CBS USA
FISERV
License and Service Agreement No. 3810163
SCHEDULE 5
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Witnesseth:
WHEREAS FIserv CIR, Inc. (hereinafter called the Company), is
the owner and licensor of certain computer software, and
WHEREAS, the Client has entered into a License Agreement for the
use of the Company's Software System (as such items are defined
therein), and
WHEREAS, the undersigned party (hereinafter called the
"Consultant") desires access to certain confidential information
of Company in order to fulfill its obligations to Client:
NOW THEREFORE, in consideration of Consultant's original and
continuing access to Company's confidential information,
Consultant agrees as follows:
For purposes of this Agreement, "Confidential Information" shall
mean information or material proprietary to the Company, which
the Consultant develops or obtains knowledge or access through or
as a result of the Consultant's relationship with the Company or
its Client (including information conceived, originated,
discovered or developed in whole or in part by the Consultant).
The Confidential Information includes, but is not limited to, the
following types of information (whether or not reduced to
writing): discoveries, ideas, concepts, software in various
stages of development, designs, drawings, specifications,
techniques, models, data, source code, object code,
documentation, diagrams, flow charts, research, development,
processes, procedures, "know-how," marketing techniques and
materials, marketing and development plans, customer names and
other information related to customers, price lists, pricing
policies and financial information. Confidential Information
also includes any information described above which the Company
obtains from another party and which it treats as proprietary or
designates as Confidential Information. INFORMATION PUBLICLY
KNOWN THAT IS GENERALLY EMPLOYED BY THE TRADE AT OR AFTER THE
TIME THE CONSULTANT FIRST LEARNS OF SUCH INFORMATION, OR GENERIC
INFORMATION OR KNOWLEDGE WHICH THE CONSULTANT WOULD HAVE LEARNED
IN THE COURSE OF SIMILAR EMPLOYMENT OR WORK ELSEWHERE IN THE
TRADE, SHALL NOT BE DEEMED PART OF THE CONFIDENTIAL INFORMATION.
All notes, materials or records, of any kind, in any way
incorporating or reflecting any of the Confidential Information
shall belong exclusively to the Company and the Consultant agrees
to turn over all copies of such materials in its control to the
Company upon request or upon termination of its assignment to the
Company.
The Consultant agrees during its assignment to the Company's
Client and thereafter to hold in confidence and not to directly
or indirectly reveal, report, publish, disclose or transfer any
of the Confidential Information to any person or utilize any of
the Confidential Information for any purpose, except in the
course of its work for the Company's Client.
The Consultant agrees that any inventions, ideas or original
works of authorship in whole or in part conceived or made by the
Consultant during or after the term of the Company's assignment
to the Company's Client which are made through the use of any of
the Confidential Information shall belong exclusively to the
Company and shall be considered part of the Confidential
Information for purposes of this Agreement whether or not fixed
in a tangible medium of expression. Without limiting the
foregoing, the Consultant agrees that any such original works of
authorship shall be deemed to be "works made for hire" of which
the Company shall be deemed the author, provided that in the
event and to the extent such works are determined not to
constitute "works made for hire" as a matter of law, the
Consultant hereby irrevocably assigns and transfers to the
Company all rights, title, and interest in such works, including
but not limited to Copyrights, patent rights, trade secrets
industrial property rights, and moral rights and shall execute
all documents reasonably requested by the Company for the purpose
of registering such rights.
This Agreement shall be governed by and construed in accordance
with the laws of Florida.
The Consultant agrees to the above terms, which terms constitute
the entire agreement between the parties, and acknowledges
receipt of a copy of this Agreement.
Consultant:
By: \s\ Ed Everts
Name: Ed Everts
Title: Senior Vice President
Date: June 21, 1996
Software License Agreement
This LICENSE AGREEMENT numbered 3810163.01 is entered into as of
the Effective Date below by and between FIserv CIR, Inc., a
Delaware corporation with offices located at 2601 Technology
Drive, Orlando, FL 32804 ("Fiserv") and Heartland Financial USA,
Inc., with offices located at 1398 Central Avenue, Dubuque, IA
52001 ("you").
Effective Date: June 21, 1996
Witnesseth:
WHEREAS, Fiserv is the licensor of the FAST software and
associated documentation ("Software"), and
WHEREAS, you wish to install and use the Software in your
premises.
NOW, THEREFORE, the parties hereto agree from the Effective Date
as follows:
1. License to Use the Software
1.1 Fiserv hereby grants you the non-exclusive, perpetual right
to use the number of copies of the Software as specified in
Schedule 1. Each such copy may be used only on a single
computer. The Software is in `use' on a computer when
loaded into temporary memory or installed into permanent
memory of that computer. However, installation on a network
server for the sole purpose of internal distribution shall
not constitute `use' for which a separate license is
required, provided you have a separate license for each
computer to which the Software is distributed. You agree
that access to the Software shall be given only to your
employees on a need to know basis, and only after informing
them of the terms and conditions relative to the use and
disclosure of the Software and cause them to adhere to all
such terms and conditions.
1.2 The Software is owned by Fiserv or its suppliers and is
protected by United States copyright laws and international
treaty provisions and other applicable national laws. You
shall have no rights to the Software or any copies thereof,
except for the right to use the Software as described in
this Agreement.
1.3 You agree you will not:
(a) make additional copies of the Software except for
one 1) archival or back-up copy;
(b) use the Software in a computer service business,
network, timesharing, multiple CPU or multiple user
arrangement, or otherwise disclose or allow the
Software to be used by or for the benefit of any third
party;
(c) alter, decompile, disassemble, reverse engineer,
or otherwise modify the Software, and/or merge the
Software with another software product or program;
(d) convey any rights of use or otherwise in or to the
Software to any third party;
(e) make any translations of the Software;
(f) make telecommunications or data transmissions of
the Software; or
(g) remove any copyright or proprietary rights notices
placed upon or within the Software.
2. Payment
2.1 Any taxes applicable to the subject matter of this Agreement
shall be your responsibility.
2.2 Payments of license fees, annual maintenance fees, or other
fees as specified in Schedule 1 are due upon receipt of the
invoice.
2.3 If the whole or any part of any invoice remains outstanding
for thirty (30) days or more, you agree to pay a financial
charge calculated at the rate of one and one half percent (1-
1/2%) per part or complete month on the overdue balance.
3. Warranties
3.1 Fiserv warrants that the Software will perform in
substantial accordance with its functional specifications
when operated in the specified operating environment as
described in the documentation. Fiserv will provide
replacements or corrections to any part 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 or by incorrect use.
3.2 Fiserv's obligation under the warranty stated in the
foregoing paragraph shall be to repair or replace defective
or non-conforming parts of the Software at its own expense
and within a reasonable time.
3.3 Fiserv warrants that it has the right to license the use of
the Software.
3.4 THE WARRANTY STATED ABOVE IS A LIMITED WARRANTY AND IT IS
THE ONLY WARRANTY MADE BY FISERV. FISERV DOES NOT MAKE, AND
YOU HEREBY EXPRESSLY WAIVE, ALL OTHER WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF THE USE OR
PERFORMANCE OF THE SOFTWARE.
4. Indemnity
4.1 Fiserv shall indemnify you and hold you harmless against any
claim or action that alleges use of the Software infringes a
patent, copyright, or other proprietary right of a third
person. Such indemnity is conditioned on you providing
prompt written notification to Fiserv of any such claim and
granting Fiserv sole right to control the defense and
disposition of such claim.
4.2 If as a result of any such claim you or Fiserv is
permanently enjoined from using the Software by a final,
nonappealable decree, Fiserv at its sole option and expense,
may procure for you the right to continue to use the
Software, or at its sole option and expense, may provide a
replacement or modification for the Software so as to settle
such claim. If modification of the Software is not
reasonably practical in Fiserv's sole opinion, Fiserv shall
discontinue and terminate this license upon notice to you
and shall refund to you all license fees paid to Fiserv
under this Agreement. In making this determination, Fiserv
will give due consideration to all factors including
financial expense.
4.3 The foregoing states the entire liability of Fiserv for the
infringement of any copyrights, patents, or other
proprietary rights of a third person by the Software or any
parts thereof. You hereby expressly waive any other
liabilities on the part of Fiserv arising therefrom.
4.4 Fiserv shall have no liability for any claim that is based
upon:
(a) the use of any part of the Software in combination
with materials, software, or equipment not provided by
Fiserv; or
(b) modifications made by you or any third party.
5. Limitation of Liability of the Parties
5.1 Each party shall indemnify and hold the other harmless
against any: (a) loss of or damage to any tangible
property; or (b) 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.
5.2 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. IN ANY EVENT,
FISERV'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF
ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT OF ANY
LICENSE FEE PAID TO FISERV AS OF THE DATE ON WHICH SUCH
CAUSE OF ACTION ACCRUES.
6. Non-Disclosure
6.1 Fiserv has granted you the limited right to use the Software
as provided in this Agreement. You acknowledge that the
Software, including all specifications, work product,
translations, and other materials developed by Fiserv
contains highly confidential, unique, secret, and valuable
information of Fiserv. You agree not to make available to
others the Software, any materials relating to or forming a
part of the Software, or any other proprietary information
of Fiserv. You agree to secure and protect the Software and
proprietary information and to take appropriate action by
written agreement with your employees permitted access to
such materials to satisfy your obligations hereunder. You
further agree to use your best efforts to assist Fiserv in
identifying and preventing any use or disclosure of any
portion of the Software or proprietary information. Your
obligations relating to confidentiality and nondisclosure
shall survive the termination of this Agreement for any
reason.
6.2 You will permit Fiserv's authorized representatives at all
reasonable times during your normal hours of operation to
audit your use of the Software to determine that the
provisions of this Agreement are being faithfully performed.
Any such audit shall be conducted in such a manner as to
minimize the disruption to your business.
6.3 You shall promptly notify Fiserv if you become aware of any
breach of confidence relating to the Software or other
Fiserv proprietary information and give Fiserv all
reasonable assistance in connection with Fiserv's
investigation of same.
7. Termination
7.1 This Agreement shall remain in effect until terminated.
Upon termination, without further action by Fiserv, all
rights in and to the Software by you shall terminate and
shall automatically revert irrevocably to Fiserv. Fiserv
shall have the right to take immediate possession of the
Software and all copies thereof wherever located without
further notice or demand.
7.2 You may terminate this Agreement in the event of a material
default by Fiserv not cured within a reasonable cure period
(with the minimum being thirty (30) days if no other cure
period is stated) after notice to Fiserv specifying the
nature of the default with reasonable particularity.
7.3 If you violate any of the non-disclosure, non-assignment, or
license to use provisions of this Agreement and fail to
remedy any such breach within five (5) days of notice
thereof from Fiserv, Fiserv may terminate this Agreement
without further notice.
7.4 If you violate or fail to perform any of your obligations
other than those specifically expressed in Sub-section 7.3
and fail to remedy any such breach within thirty (30) days
of notice thereof by Fiserv, or if you become insolvent or
cease to do business, then Fiserv may give notice declaring
this Agreement is terminated at the expiration of such
notice period.
7.5 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 this
Agreement.
7.6 Your failure to pay any fees due on a timely basis is cause
for termination of this Agreement.
8. Maintenance
8.1 Annual Maintenance fees shall be based upon Fiserv's then
current single copy license fee and will be invoiced thirty
(30) days following the Effective Date. The following
maintenance services will be provided:
(a) Telephone support during normal business hours
(8:30 a.m. to 5:00 p.m. EST) for reasonable operator
support.
(b) On-site support and training when requested at
Fiserv's then current hourly rate.
(c) Program fixes to correct Software non-conformities
with the functional specifications within a reasonable
period of time upon notice.
(d) Software updates as released by Fiserv. If you so
request, Fiserv shall install such updates at Fiserv's
then current hourly rate.
Maintenance services selected by you shall be described on
Schedule 1.
8.2 Fiserv shall not be required to provide maintenance services
occasioned by improper use or unauthorized modifications of
the Software. When you so request, Fiserv will attempt to
restore the Software to proper working order at Fiserv's
then current hourly rate.
8.3 You will reimburse Fiserv for reasonable travel and living
expenses when maintenance and other services rendered herein
so requires.
8.4 Fiserv shall give you thirty (30) days notice of Maintenance
Fee increases unless provided otherwise.
9. Non-Assignment
9.1 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 prior written consent of the
other party, except that Fiserv may assign this Agreement to
an affiliate.
10. Entire Agreement
10.1 This Agreement 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.
10.2 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.
11. Notices
11.1 Any notice required or permitted to be given hereunder shall
be given in writing by (a) air courier to the addresses set
out above (or to any subsequent address designated by either
party for the purpose of receiving notices); or (b)
confirmed facsimile.
12. Action
12.1 No action, regardless of form, arising out of this Agreement
may be brought more than two (2) years after such cause of
action has accrued.
13. General Terms
13.1 Except for disputes relating to intellectual property rights
or confidential information, both parties agree to arbitrate
disputes arising under this Agreement using the services of
the American Arbitration Association in Florida, with all
decisions by the arbitrator final. Judgment upon the award
rendered by the arbitrator may be entered in any court
having jurisdiction.
13.2 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, expenses, and attorneys' fees of bringing
such action.
13.3 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.
13.4 Neither party shall be responsible for delays or failures in
performance resulting from acts reasonably beyond the
control of that party.
13.5 This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without
regard to principles of conflicts of law.
13.6 If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall
nevertheless continue in full force and effect.
13.7 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.
13.8 The attached Schedules form part of and are included in this
Agreement:
Schedule 1 - Licensed Module(s), Term, Amount/ Maintenance and
Professional Services
Schedule 2 - Implementation Summary
IN WITNESS whereof this Agreement has been executed as of the
Effective Date by the following duly authorized representatives:
For and on behalf of Financial Institution
By: \s\ Ed Everts
Title: Senior Vice President
For and on behalf of Fiserv
By: \s\ Rosemary K. Hartman
Title: President, CBS USA
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT numbered 3810163 is entered
into as of the Effective Date set forth below by and between
Fiserv
a Corporation whose registered office is located at
2601 Technology Drive
Orlando, FL 32804
(hereinafter called 'Company') and
Heartland Financial USA, Inc.
whose registered office is located at
1398 Central Avenue
Dubuque, Iowa 52001
(hereinafter called 'Client')
This Agreement shall be construed and enforced under the laws of
Florida
Effective Date: June 21, 1996
1. Definitions
In this Agreement, the following terms shall have the
following meanings:
1.1 'Business Requirements' means the description of the
Client's business needs and the functionality required.
1.2 "Client Confidential Information" means any confidential
information concerning Client's business, that is labeled as
such and all data pertaining to Client's customers.
1.3 'Computer System' means that dedicated computer machinery
and manufacturer-supplied software identified in the License
Agreement.
1.4 'Effective Date' means the date identified as such in this
Agreement as the date upon which this Agreement shall
commence.
1.5 'Fees' means the greater of the sums of amounts derived by
multiplying either the minimum number of days specified on
Schedule(s) 1 or the number of days or fractions of days
worked within each grade by the daily fee rate as defined on
the Schedule(s) 1.
1.6 'Functional Specifications' means the description of the
detailed functionality changes to product, account and
customer level processing.
1.7 'License Agreement' means that Agreement between Client and
Company governing use of the Software System and as
identified on Schedule 1.
1.8 'Location' means those premises specified on Schedule 1.
1.9 'Software System' means that Software System identified in
the License Agreement.
1.10 'Specification Nonconformity' means a failure of the
modified Software System to operate in accordance with the
Functional Specifications.
1.11 'Taxes' means all sales, use, excise, value added, and other
taxes and duties however designated which are levied by any
taxing authority having jurisdiction over the Location.
Taxes shall not include any levies by any taxing authority
which are based upon the net income of Company.
1.12 'Third Party' means any party other than Company's employees
or subcontractors and Client.
1.13 'Use' means copying or loading any portion of the Software
System from storage units or media into any equipment for
the processing of data by the Software System once so
loaded, or the operation of any procedure or machine
instruction utilizing any portion of either the computer
program or instructional material supplied with the Software
System. Use is deemed to occur at the location where any of
the above processes happen. Use is limited to type of
operations described in Company documentation solely to
process Client's own work and that of majority-owned
financial institutions. Use specifically excludes any
service bureau or time-share services to minority-owned or
unaffiliated third parties without prior written consent by
Company and payment by Client of additional fees in
accordance with mutually agreed terms.
2. Agreement to Provide Professional Services
2.1 In consideration of the payment to Company by Client of the
Fees and the cost of all items and services provided and any
other expenses incurred by Company in connection with this
Agreement, as defined on Schedule(s) 1, Company hereby
agrees to provide personnel of the grades, and between the
dates specified on Schedule(s) 1 to work on behalf of Client
in accordance with the terms and conditions set out below.
2.2 All work which is to be performed by Company hereunder shall
be based upon the preliminary Business Requirements listed
on Schedule 2. Client shall utilize Schedule 2 to provide
Company with all necessary information concerning its
requirements for modifications to the Software System or
other information requested by Company related to Company's
performance of its obligations under this Agreement. Any
estimates of costs and completion dates listed on the
Schedules are referenced solely for the purpose of allowing
Client to plan its budgets and schedules based upon the then
available information.
2.3 Company shall provide a Preliminary Project Plan based upon
the Business Requirements which shall be incorporated as
Schedule 3 when appropriate. Schedule 3 shall contain a
preliminary listing of the nature and timing of tasks for
the project, some of which are to be performed by Company
and some by Client. Company shall utilize reasonable
efforts to meet the dates set forth in the Project Plan or
any replacement thereof.
2.4 In the event that Company is to provide installation,
conversion or training to Client for the Software System,
the fees therefore shall be as specified on Schedule 1. The
nature and timing of any installation, conversion and
training shall be as specified in the Project Plan mutually
agreed upon by the parties.
2.5 In the event that Company is to provide modifications to the
Software System, the modifications shall be based upon
specifications created by Company and approved by Client as
provided below:
(i) During the phase referred to on the Project Plan
as "Functional Specifications," Company may develop
Functional Specifications based upon the descriptions
contained on Schedule 2 for Client's written approval.
Company shall not be obligated to perform any further
development work until Specifications have been
accepted in writing by Client which acceptance shall
not be unreasonably withheld or unduly delayed.
(ii) Modifications, changes, enhancements, conversions,
upgrades or additions to the Software System beyond
those stated in the Functional Specifications shall be
added only upon mutual written agreement. In the event
the parties agree to add any such items, the Project
Plan shall automatically be modified to the extent
necessary to allow for the implementation or provision
of the items.
(iii)The Project Plan shall also set forth the time
period after the acceptance of the Functional
Specifications within which Company shall prepare
"Functional Specifications" including an acceptance
test script for the adaptations described therein.
After Client's written acceptance of the Functional
Specifications, which acceptance shall not be
unreasonably withheld or delayed, Company shall
commence activities to modify the Software System for
use by Client in accordance with the Project Plan.
(iv) The Software System adaptations shall be deemed to
have been accepted by Client either upon the completion
of a formal Acceptance Test (as set forth in the test
scripts) or 30 days after delivery of the modified
Software System, whichever occurs first. Acceptance by
Client will not be unreasonably withheld or unduly
delayed. Client agrees promptly to notify Company in
writing (and with reasonable particularity) upon
conclusion of the Acceptance Test or earlier upon
discovery of any Specification Nonconformities
disclosed by such testing or use. Company shall
correct any Specification Nonconformities disclosed by
such testing without further charge to Client within a
reasonable time of Client's notice.
3. Use Of And Rights To Company's Work Product
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 services performed hereunder shall be the sole
and exclusive property of Company or its corporate parent.
Client shall be entitled to Use all such work product
produced by Company in accordance with the terms and
conditions of the License Agreement. Nothing contained in
this Agreement shall be deemed to provide greater rights
with respect to the Software System, as modified for
Client's use herein, than those provided in the License
Agreement.
4. Warranties
4.1 Company 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.
4.2 No warranty, condition, undertaking or term, statutory or
otherwise, is given or to be implied as to the suitability,
condition, quality, performance, or merchantability of goods
supplied for any particular purpose or for use under any
specific conditions, notwithstanding that such purpose or
condition may be known or made known to Company and all such
warranties, condition, undertakings, or terms are hereby
nullified and excluded.
5. Rescheduling
If Client is unable to provide access to required facilities
or personnel or is unable to meet its tasks assigned on
Schedules 2 and 3 in a timely manner, Company will endeavor
to reschedule tasks to minimize the non-productive time
arising. All such non-productive time is chargeable to
Client. If such non-productive time is expected to be
significant, Company will endeavor to reassign its personnel
to other suitable work. In this event, Client will not be
charged for the time personnel were reassigned.
6. Fees
6.1 The fees are based on a workday as defined on Schedule(s) 1.
Additional fees may be raised in respect of hours worked
outside these at the request of Client at the rates
previously agreed in writing by Client.
6.2 If support is primarily required in part days, Company may
notify Client that an hourly fee rate shall apply. The
hourly rate will be calculated pro-rata of the stated daily
rate unless otherwise agreed.
6.3 The daily rates quoted in the table will be valid for three
months from the effective date listed on the relevant
Schedule 1. Thereafter, they will be subject to change by
Company on one-month's notice.
6.4 A higher fee may be applied for an individual whose support
to Client has advanced to a new job grade or after one
month's notice if his general development warrants a job
upgrade by Company.
7. Payment of Fees and Expenses
7.1 Company shall add to each invoice and Client shall pay any
Taxes applicable to the Services.
7.2 Except as expressly provided in this Agreement to the
contrary, Client agrees to pay the reasonable travel and
living expenses (including any duties or tariffs but
excluding any employment taxes imposed by the country
governing the Location) of any employees of Company 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 itemised on invoices submitted by Company and shall be
due and payable upon presentation of each invoice as
provided herein.
7.3 Each payment to be made to Company under this Agreement
shall be paid by Client, in funds as specified on Schedule
1, within fifteen (15) days of the date of an invoice in
respect thereof and the time of payment shall be of the
essence of this Agreement.
7.4 Invoices will be raised monthly by Company or at such less
frequent intervals as it decides in its discretion.
7.5 If the whole or any part of any invoice remains outstanding
for 30 days or more, Client agrees to pay an agreed
financial charge calculated at the rate of one and one-half
percent (1-1/2%) per part or complete month on the overdue
balance, and in addition, Company may at its sole option
terminate this Agreement. Company shall pay the same
financial charge on the amount of any credit due to Client
for sums previously paid by Client which were the subject of
a dispute resolved in Client's favor.
8. Limitation of Liability of the Parties
8.1 Each party shall indemnify and hold the other harmless
against any
(a) loss of or any damage to any tangible property or
(b) 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.
8.2 Company 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
it has been advised of the possibility of such damages. In
any event, the liability of Company to Client upon any cause
of action, not including an infringement action, shall be
limited to the amount of any Professional Services Fee which
Client has paid to company in the twelve-month period prior
to the date on which such cause of action accrued.
Notwithstanding the above, the Company's liability with
respect to infringement actions is set forth in Section 18.
9. Termination
9.1 Client may terminate this Agreement after payment of the
fees in full by giving one month prior notice in writing to
Company provided always that termination under this sub-
clause shall not prevent Company from recovering any
outstanding fees and expenses.
9.2 Client may within one month of receipt of a notice by
Company of a fee increase elect to terminate the Agreement
as of the date upon which the fee increase takes effect.
9.3 Client may terminate the Agreement in the event of a
material default by Company that is not cured within the
applicable cure period specified in this Agreement, or a
reasonable cure period (with the minimum being thirty (30)
days if no other cure period is stated) from receipt by
Company of written notice specifying the nature of the
default with reasonable particularity.
9.4 If Client violates or fails to perform any of the terms or
conditions of this Agreement and fails to remedy any such
breach within thirty (30) days of notice thereof from
Company, or if Client shall become insolvent, then Company
may give a written notice declaring this Agreement is
terminated at the expiration of such notice period.
9.5 Exercise of the right of termination afforded to either
party by this Agreement 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.
10. Non-Disclosure
10.1 Client acknowledges that
(a) the Software System, including all specifications,
work product, translations and other materials
developed by Company under this Agreement, and
(b) the terms and conditions of this Agreement
contain highly confidential, unique, secret and
valuable information of Company. Client agrees that
it shall not decompile, disassemble or reverse engineer
the Software System and that it shall not sell,
transfer, publish, disclose, display or otherwise make
available to others the Software System, any materials
relating to or forming a part of the Software System or
any other proprietary information of Company without
the prior written consent of Company. Client agrees to
secure and protect the Software System 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 that it shall use its best
efforts to assist Company in identifying and preventing
any use or disclosure of any portion of the Software
System or proprietary information. As a precondition
of Client's request to Company for consent to disclose
the Software System, in whole or in part, to a Third
Party, Client shall obtain from such party an executed
Schedule 4. All obligations and undertakings of Client
relating to confidentiality and nondisclosure, whether
contained in this Section or elsewhere in this
Agreement, shall survive the termination of this
Agreement for any reason.
10.2 Company shall protect any Client Confidential Information
from disclosure with the same degree of care afforded by
Company to its own confidential information. All
obligations and undertakings of Company specified herein
with respect to Client Confidential Information shall
survive the termination of this Agreement for whatever
reason.
10.3 Client shall permit Company'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, Company shall be entitled to
enter into any of Client's premises and Client hereby
irrevocably grants authority to Company 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 the Use
of the Software System.
10.4 Client shall promptly notify Company if it becomes aware of
any breach of confidence relating to the Software System or
other Company proprietary information and give Company all
reasonable assistance in connection with Company's
investigation of same.
11. Non Recruitment
For the duration of this Agreement and for one (1) year
thereafter, neither party shall recruit nor employ any
personnel employed by the other party and introduced in
connection with the performance of this Agreement or
otherwise discourage such personnel from continuing their
employment with the other party without the prior written
consent of the other party.
12. Force Majeure
Neither party shall be responsible for delays or failures in
performance resulting from acts reasonably beyond the
control of that party.
13. Variation
No variation of this Agreement shall be binding on either
party unless such variation is in writing and signed by the
duly authorized representatives of both parties.
14. Notices
Any notice required to be given hereunder shall be
given by sending the same
(a) by air courier to the addresses as first
set out above, or to any subsequent address
designated by either party for the purpose of
receiving notices pursuant to this Agreement, and
any notice so sent shall be deemed to have been
given three (3) business days after the same was
mailed; or
(b) by confirmed facsimile.
15. Entire Agreement
15.1 No action, regardless of form, arising out of this
agreement, shall be brought by Client more than two (2)
years after such cause of action shall have accrued.
15.2 This instrument constitutes the entire Agreement between the
parties on the subject matter hereof and supersedes all
previous agreements, arrangements and undertakings with
respect thereto.
15.3 Each party hereby acknowledges that it has not entered into
this Agreement in reliance upon any representation made by
the other party and not embodied herein.
16. Schedules
The attached Schedules form part of and are included in this
Agreement.
17. General Terms
17.1 In the event that a dispute arises concerning the terms of
this Agreement the aggrieved party shall refer such dispute
to arbitration as specified herein. Such arbitration shall
be held in the City or suburbs of Orlando, Florida, in
accordance with the rules of the American Arbitration
Association pertaining to the Resolution of Computer
Disputes ("AAA Rules") then in effect. Judgment upon the
award rendered by the arbitrators may be entered in any
court having jurisdiction over the parties. The arbitrators
shall have the authority to grant any legal remedies that
would be available in any judicial proceeding instituted to
resolve a disputed matter.
17.2 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.
17.3 Company and Client agree that each provision in this
Agreement is deemed equally essential to each party.
17.4 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.
17.5 If any provision of this Agreement is held to be
unenforceable, all other provisions will nevertheless
continue in full force and effect.
17.6 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.
18. Indemnity
18.1 Company shall indemnify Client and hold it harmless against
any claim or action which alleges that the use of the
modifications to the Software System supplied hereunder
infringes a patent, copyright or other proprietary right of
a third person enforceable in the Location. Client agrees
that it will notify Company promptly in writing of any such
claim and grants Company sole right to control the defense
and disposition of such claim.
18.2 If as a result of any such claim Company or Client is
permanently enjoined from using the modifications to the
Software System by a final non-appealable decree, Company at
its sole option and expense may procure for Client the right
to continue to use the modifications or at its sole option
and expense, may replace or change the modifications so as
to settle such claim. If replacement or change of the
modifications is not reasonably practical in the sole
opinion of Company (reasonably applied), after giving due
consideration to all factors including financial expense,
Company shall discontinue Client's license to use such
modifications upon written notice to Client and shall refund
to Client all professional services fees related to such
infringing modifications paid to Company under this
Agreement. The foregoing states the entire liability of
Company with respect to infringement of any copyrights,
patents or other proprietary rights of a third party by the
modifications to the Software System, and Client hereby
expressly waives any other such liabilities. This indemnity
shall not apply to any modifications made to the Software
System by or on behalf of Client, unless the modifications
are made or approved by Company personnel nor shall the
indemnity apply to an infringement which arises out of the
use by Company of Client supplied proprietary information.
IN WITNESS whereof this Agreement has been executed as of the
Effective Date set forth on Page 1 by the following duly
authorized representatives:
Signed for and on Behalf of Company
By: \s\ Ed Everts
Title: Senior Vice President
Signed for and on Behalf of Client
By: \s\ Rosemary K. Hartman
Title: President, CBS USA