Fiserv License Agreement

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 WA ...