Exhibit 10.34
New Systems Operations Agreement
This New Systems Operations Agreement (the "Agreement") is entered into
between
1. Board of Trade of the City of Chicago, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇
▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "CBOT")
2. Ceres Trading Limited Partnership, c/o Board of Trade of the City of Chicago,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America
(hereinafter, "Ceres")
and
1. Deutsche Borse Systems AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇
(hereinafter, "DBS")
2. Eurex Zurich AG, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "Eurex Zurich")
3. Eurex Frankfurt AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "Eurex Frankfurt")
New Systems Operations Agreement - Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
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PREAMBLE
A. Eurex Zurich and its wholly-owned subsidiary Eurex Frankfurt (referred to
jointly as the "Eurex Entities") are operating the electronic derivatives
exchanges Eurex Zurich and Eurex Deutschland (the "Eurex Exchanges"). The
technological basis of the Eurex Exchanges is the Eurex Software, a
software jointly developed and owned by Deutsche Borse AG ("DBAG") and the
SWX Swiss Exchange ("SWX").
B. CBOT offers certain derivative products for trading on that certain
electronic market operated on the basis of Release a/c/e 1.0 of the Eurex
Software and formerly known as "a/c/e" (the "CBOT Electronic Market"). The
host used for the CBOT Electronic Market is located in Chicago (the
"Chicago Backend"). To date, DBS, a wholly-owned subsidiary of DBAG, has
provided to Ceres and CBOT the services required (i) for the operation of
the Chicago Backend, (ii) for the connection of the CBOT Electronic Market
to a dedicated wide-area communications network provided by DBS (the
"Network") that can be accessed through certain Access Points, and (iii)
for technically enabling users of the Eurex Exchanges ("Eurex Users") and
users of CBOT (the "CBOT Users") to access the CBOT Electronic Market and
the Eurex Exchanges on the basis of a Systems Operations Agreement dated
July 20, 2000 (the "Systems Operations Agreement"). The parties to the
Systems Operations Agreement have decided to terminate the Systems
Operations Agreement by way of a separate Reorganization Agreement dated an
even date herewith (the "Reorganization Agreement").
C. CBOT and Ceres desire that, following termination of the Systems Operations
Agreement, DBS continues to operate the Chicago Backend, that the CBOT
Users continue to use the Network in order to access the CBOT Electronic
Market, and that the CBOT Electronic Market continues to be connected to
the Network. DBS is prepared to provide Ceres with the services required in
order to achieve these goals subject to the terms of this Agreement.
In consideration of the foregoing premises and the mutual covenants herein set
forth, the parties agree as follows:
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
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1. Definitions
1.1 Terms used in this Agreement with initial capital letters (other than
proper nouns) have the meanings set forth in the glossary of defined terms
attached as Schedule 1.1.
2. Scope of Agreement
2.1 Scope of Agreement. This Agreement governs the relationship between CBOT
and Ceres, on the one hand, and DBS, on the other hand, with regard to
certain services to be provided by DBS for the purpose of the operation of
the Chicago Backend and in order to connect the CBOT Users to the CBOT
Electronic Market through the Network as set forth in Section 4.1 (the
"Operation Services"). The Eurex Entities shall neither be responsible nor
be liable under this Agreement in any way for the provision of the
Operation Services or for any failure of DBS in performing the Operation
Services. CBOT and Ceres shall neither be responsible nor be liable in any
way for the provision of any services to the Eurex Entities or for any
failure of DBS in performing services for the Eurex Entities.
2.2 Other Agreements. Ceres' right to use certain parts of the Eurex Software
is governed by a Non-exclusive Software License Agreement dated an even
date herewith between DBAG, SWX, CBOT and Ceres (the "Non-exclusive
Software License Agreement") with maintenance to be provided under a
Software Maintenance Agreement among DBAG, SWX, the Eurex Entities, CBOT
and Ceres (the "Software Maintenance Agreement").
3. Use of Network
3.1 Network Standards. Ceres and CBOT acknowledge that under no circumstance
shall Ceres' and CBOT's use of the Network, as made available under this
Agreement, restrict or adversely affect DBAG's, SWX's and the Eurex
Entities' operation, maintenance and further development of the Eurex
Software, the Network and the Eurex Operations.
3.2 Connection Alternatives. Ceres and CBOT shall ensure that the CBOT
Electronic Market offers at all times all of the connection alternatives
described in the
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Implementation Regulations of the Eurex Exchanges Concerning Technical
Equipment as amended and offered to CBOT and Ceres from time to time.
3.3 Certain Restrictions. Without the prior written consent of the Eurex
Entities, Ceres and CBOT shall not (i) use the Network provided under this
Agreement and the Chicago Backend for any other purpose than for the
electronic trading of Eligible Derivatives as defined in the Non-exclusive
Software License Agreement, or (ii) connect any trading platform other than
the CBOT Electronic Market to the Network.
4. Scope of Operation Services
4.1 Engagement. Ceres hereby engages DBS to provide the Operation Services. The
scope of the Operation Services is defined in Schedule 4.1 and any Change
Requests. The scheduling of work (e.g., milestones, completion dates and
performance credits) will, if applicable, be set forth in the corresponding
Schedule or Change Request.
4.2 Priority. If any provision in Schedule 4.1 expressly states that it has
priority over the terms of this Agreement, or if any provision in a Change
Request expressly contradicts a provision in this Agreement, the provision
in the Schedule or the relevant Change Request will have priority over the
relevant terms of this Agreement. If a provision in Schedule 4.1 or a
Change Request contradicts a provision in another Change Request, the most
recent provision will have priority.
4.3 Deliverables, Services, Tasks. Schedule 4.1 and each Change Request must
describe the specific work results ("Deliverables") to be produced under
the Schedule or Change Request. A Deliverable must include, if appropriate,
functional and technical specifications for itself or for other
Deliverables. Schedules and Change Requests relating to ongoing services
("Services") will describe the service in detail and the standards for
determining the quality of service. Schedules and Change Requests, and
documents prepared pursuant to Schedules and Change Requests, will assign
specific work ("Tasks") to the parties and establish time frames in which
the Tasks are to be completed; Tasks will also constitute Deliverables to
the extent that the Task requires the production of a specific work product
and not just an ongoing service. Schedules and Change Requests can also
establish the price for the Tasks, together with a payment schedule and may
include a schedule of resources to be devoted to the work,
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pursuant to a request for confidential treatment.
Asterisks denote omissions.
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including the number of man-days each party will provide, the equipment and
the premises where the work will be carried out.
4.4 Change Request. Ceres or DBS may request a change in Operation Services at
any time ("Change Request").
4.4.1 A Change Request will be in writing and will follow a format to be
provided by DBS. Each Change Request must contain sufficient
information to enable the recipient to reasonably evaluate the
Change Request including particularly:
. a description of the change (including specifications, test
procedures, date of completion etc.),
. reasons for the change,
. additional resources required to implement the change
(including any proposed subcontractors other than Freelancers),
. impact on other elements of the Operation Services or work to
be performed by DBAG within the scope of the Software
Maintenance Agreement,
. impact on service levels under this Agreement,
. cost impact of the change and allocation of responsibility for
increased costs or benefits from reduced costs; if appropriate,
the Change Request will contain either a time-and-materials
price scheme or a fixed price for the additional work together
with a payment schedule.
4.4.2 If the party submitting a Change Request cannot reasonably provide
sufficient information under the above categories using the party's
own resources, the submitting party may require the other party or
parties to assist in providing the missing information without
undue delay. If a Change Request initiated by Ceres requires DBS to
expend more than one man-day in order to complete the information,
DBS can charge for the work on a "time-and-materials" basis if DBS
has informed Ceres in advance that it intends to charge for such
efforts. DBS will not charge if one man-day or less is required to
complete the information.
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pursuant to a request for confidential treatment.
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4.4.3 The parties recognize that there may be various solutions to each
Change Request. DBS will propose solutions that it reasonably
believes will best meet the needs of Ceres while complying with the
defined scope of work. If Ceres rejects a proposed solution that
meets all of the requirements of this Agreement in favor of an
alternative, DBS will inform Ceres, in writing within two weeks of
receipt of the alternative proposal about any anticipated increased
costs or delay and, if appropriate, additional resources which are
required, as well as all anticipated problems with the solution
selected by Ceres such as impact on service levels. If the parties
cannot reach agreement at the operational level Ceres may, at its
own risk, insist on its alternative solution. In this event, DBS
will, subject to Section 4.4.5, be obliged to perform the work on
the alternative solution once a corresponding Change Request, in
which Ceres agrees to compensate DBS for such work in accordance
with the applicable DBS Catalogue of Prices, has been signed by
Ceres. The obligation of DBS to perform work under such a Change
Request is subject to the condition precedent that DBS has
reasonable access to the additional resources set forth in the
notice submitted to Ceres under the third sentence of this Section
4.4.3.
4.4.4 Any Change Request by either DBS or Ceres shall be communicated to
the designated recipient of the Change Request through the Eurex
Entities. The Eurex Entities shall investigate implications of the
proposed Change Request on the Eurex Operations and/or the Network
without undue delay. Following such investigation, the Eurex
Entities shall promptly forward, with comments as appropriate, the
Change Request to the designated recipient. Any Change Request
directly submitted to the designated recipient shall be deemed non-
existing and shall not be processed by the recipient of such Change
Request.
4.4.5 A Change Request will become binding if it has been signed by
Ceres, the Eurex Entities and DBS. DBS, the Eurex Entities and
Ceres will evaluate Change Requests without undue delay. Except as
provided in Section 4.4.2, no party is under an obligation to
perform work under a Change Request prior to the Change Request
having been orderly signed; the costs for performing any such work
prior to signing will be borne by the party performing the work.
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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4.4.6 Under no circumstances shall DBS and the Eurex Entities be
obliged to agree to any Change Request that would have a
negative impact on any of the Eurex Operations, the Eurex
Software or the Network.
4.4.7 For the avoidance of doubt any inquiry for work by either of
DBS and Ceres relating to the opening up or closing down of any
Access Point will be subject to the Change Request procedure
set forth in this Section 4.4.
5. Co-operation, Communication, Subcontracting
5.1 Critical Instructions. If DBS reasonably believes that implementation
of an instruction by Ceres is contrary to the performance of the
Operation Services (e.g., the implementation would interfere with the
operation of any of the Eurex Operations or the Network) or would
materially impair DBS' ability to perform other work under this
Agreement, DBS will notify Ceres and the Eurex Entities thereof, and
DBS will not be required to implement the instruction until both Ceres
and the Eurex Entities have confirmed the instruction.
5.2 Delays. Reference to obligations of Ceres also includes all Tasks to
be performed by Ceres. DBS will not be responsible for delays in work
under this Agreement or for budget overruns which are caused by acts
or omissions by Ceres. DBS shall notify Ceres of the specific risk
that the delay or budget overrun will occur, and Ceres must be given
the opportunity to perform the relevant Task without undue delay.
5.3 Co-operation. Ceres will provide the resources identified in Schedule
4.1 and each applicable Change Requests and perform such other Tasks
as may be set forth in Schedule 4.1 and each Change Request. Ceres
shall provide DBS with all reasonable co-operation and assistance in
the performance of the Operation Services, in each case including:
5.3.1 Ceres will make all decisions reasonably requested of it by DBS
in a timely manner; such decisions will be made at the latest
within one week after receiving a written request from DBS for
the decision, provided that such one week period does not
commence to run if Ceres still requires reasonable
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information from DBS before making the decision. The one week
period will be extended by a reasonable amount of time if
circumstances require this.
5.3.2 Ceres will provide in a timely manner all information which DBS or
the Eurex Entities reasonably requests.
5.3.3 Ceres will provide appropriately equipped facilities designated by
the Program Managers, particularly in the United States of America
(the "Facilities"), for carrying out the Operation Services within
the scheduled time frame at the reasonable request of DBS. The
appropriate equipment in the Facilities does not include components
of the system which are being provided by DBS.
5.3.4 As DBS may reasonably request assistance, Ceres will make personnel
resources available at locations where work within the scope of the
Operation Services is being conducted in order to provide such
assistance in a timely manner.
5.3.5 Ceres will provide DBS and its subcontractors with access to the
Facilities where equipment required for the performance of the
Operation Services is located 24 hours per day, 365 days per year
(including weekends and holidays), except to the extent that
security requirements make such access unreasonable.
5.3.6 DBS will provide reasonable assistance to Ceres and its employees
and subcontractors so that they can perform their Tasks and other
work relating to the Operation Services.
5.4 Program Managers. DBS and Ceres will each appoint one Program Manager. Each
Program Manager is entitled to make all decisions and issue all
declarations on behalf of its principal with regard to any aspect of the
Operation Services, provided, however, that the Program Managers are not
entitled to make any decision that, pursuant to this Agreement, require the
consent of the Eurex Entities. Each party will also appoint substitute
Program Managers who can exercise the authority of the Program Managers in
their absence. Neither Ceres nor DBS has any responsibility for monitoring
whether the other side's Program Manager has actually complied with the
internal approval procedures. One side's Program Manager can delegate
authority for
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a specific matter or for categories of matters to another person by
informing the other side's Program Manager in writing; the delegation of
authority may only be cancelled by written notification to the other
Program Manager. The names of the current Program Managers and their
substitutes are set forth in Schedule 5.4.
5.5 Eurex Manager. The Eurex Entities will appoint a Eurex Manager. The Eurex
Manager is entitled to make all decisions and issue all declarations on
behalf of the Eurex Entities with regard to any aspect of the Operation
Services. The Eurex Entities will also appoint a substitute Eurex Manager
who can exercise the authority of the Eurex Manager in his absence.
Neither Ceres nor DBAG has any responsibility for monitoring whether the
Eurex Manager has actually complied with the internal approval procedures.
The Eurex Manager can delegate authority for a specific matter or for
categories of matters to another person by informing the Program Managers
in writing; the delegation of authority may only be cancelled by written
notification to the Program Managers. The names of the current Eurex
Manager and his substitute are set forth in Schedule 5.4.
5.6 Escalation Committee. The parties will establish an "Escalation
Committee" which will consist of CBOT's Chairman and Chief Executive
Officer, the Chief Executive Officer of DBS' Management Board
(Vorsitzender des Vorstands) and the Chief Executive Officer of the Eurex
Entities. The purpose of the Escalation Committee is to discuss Problems
which are not resolved by the Program Managers.
5.7 Subcontractors. Prior to engaging any subcontractor other than a
subcontractor who is a natural person (such natural person a
"Freelancer"), DBS shall inform Ceres and the Eurex Entities about the
intended subcontracting. Any engagement of a subcontractor by Ceres shall
require prior written approval by DBS and the Eurex Entities. Each party
will be liable for the performance of its subcontractors under (S) 278
German Civil Code. Each party must especially make sure that its
subcontractors comply with all provisions of the Agreement relating to
confidentiality and each party must require each of its subcontractors to
execute appropriate non-disclosure agreements consistent with the
requirements of Section 15.
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pursuant to a request for confidential treatment.
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6. Legal and Regulatory Environment
6.1 Compliance. DBS will perform the Operation Services in compliance with
legal and regulatory requirements, if any, for the operation of the CBOT
Electronic Market. Ceres is responsible for timely informing DBS about
these requirements and their impact on the Operation Services. DBS and
each of the Eurex Entities will monitor the compliance of their
respective employees and subcontractors assigned to provide Operation
Services under this Agreement with CFTC Regulation 1.59 and will require
such persons to execute a letter in the form set forth in Schedule 6.1.
6.2 Other Standards. Ceres may require that the Operation Services will
comply with other standards at any time by initiating the Change Request
procedure.
6.3 Monitoring. Ceres is responsible for monitoring all changes in the legal
and regulatory requirements and standards set forth in the preceding
Sections 6.1 and 6.2 for the CBOT Electronic Market. Ceres will, through
the Change Request procedure, inform DBS without undue delay about any
changes required in the Operation Services in order to comply with changes
in such requirements and standards.
6.4 Regulatory Audits. At the request of CBOT, DBS will grant reasonable
access to its facilities, records and personnel to regulatory authorities
for the purpose of auditing the CBOT Electronic Market.
7. Equipment
7.1 Ownership. DBS will acquire or has acquired, at its own expense, the
equipment necessary to perform the Operation Services. All such equipment
is or will either be leased or owned by DBS.
7.2 Advice. To the extent Ceres purchases its own equipment (including
hardware, software, telecommunications materials, and anything else
relating to the Operation Services), DBS will recommend appropriate
equipment to Ceres, based on a Change Request and based on information
received from Ceres and information developed during the course of the
performance of the Operation Services. DBS will make recommendations based
on their reasonable assessment of the relevant requirements. However, DBS
assumes no liability for any defect in the equipment purchased. All
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responsibility for purchasing the equipment and the risks associated with
any defect in such equipment will be borne by Ceres or the respective
purchaser.
8. Problem Resolution
8.1 Notification. Each of the parties can notify each other at any time in
writing about a "Problem". A Problem is (i) an alleged failure of a party
to perform its obligations, (ii) a disagreement about whether requested
work or material is within the scope of the Operation Services, or (iii)
any circumstance, whether or not within the control of the parties, which
adversely affects performance under this Agreement within the agreed time
and budget. For purposes of this Section 8, the Eurex Manager shall be
deemed a Program Manager.
8.2 Timeliness. Each of the parties will inform each other about a Problem
without undue delay after becoming aware of it. If documentary evidence
clearly shows that a party was aware of a Problem or should have been
aware of the Problem exercising a highly professional standard of care,
and the party failed to inform the other party within two weeks of
becoming aware or when it should have become aware, the party who raises
the Problem cannot assert any claims or other rights against the other
party resulting from the Problem prior to notification, but the party
raising the Problem can require the other party to correct the Problem
without undue delay.
8.3 Content. Notification of a Problem shall be in a written "Problem Report"
which at a minimum contains sufficient information (to the extent
reasonably available to the notifying party) under the following headings
to reasonably evaluate the Problem:
. description of the Problem including a designation of those parts of
the Operation Services affected by the Problem,
. estimated impact on timing and costs,
. proposal for corrective action,
. description of the resources needed for the corrective action,
. proposal for allocation of costs resulting from the Problem and the
corrective measures.
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A Problem Report needs to be signed by the Program Manager of the party
submitting the Problem Report.
8.4 Resolution. If the Program Managers cannot resolve a Problem within 10
Business Days after a Problem Report has been submitted, either party can
refer the Problem in writing to the Escalation Committee. The Escalation
Committee cannot impose a resolution of a Problem on a party without the
party's consent. If any Program Manager notifies the other Program
Managers in writing that the Problem is urgent, the period of 10 Business
Days for referral to the Escalation Committee will not apply, i.e. the
Problem can be referred immediately. If the Escalation Committee is unable
to resolve the Problem within 30 Business Days after the problem has been
referred to it in writing, or such earlier date if it agrees that it
cannot resolve such Problem, either party may proceed to arbitration as
set forth in Section 18.9.
8.5 Continued Performance. Pending resolution of a Problem (including through
arbitration) involving an allegation of improper performance on the part
of DBS, Ceres must continue to make payments on DBS' invoices relating to
the Operation Services equal to (i) the amounts owed for work not
materially affected by the alleged improper performance, and (ii) 75% of
the other invoiced amounts. DBS cannot suspend performance, pending
resolution of a Problem. However, if Ceres fails to comply with its
obligation under the first sentence of this Section 8.5, DBS can suspend
its performance only for the work for which payment has been withheld in
violation of the first sentence of this Section 8.5. If Ceres has
suspended payment only under a Change Request, DBS can only suspend
performance of its work under that Change Request. Under no circumstances
will DBS suspend performance except as permitted under this Section 8.5.
8.6 Record. If the parties resolve a Problem without arbitration, the parties
will record the resolution in writing.
8.7 No Waiver. Compliance with the Problem resolution procedure does not
waive any substantive rights or remedies under this Agreement.
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9. Quality Control
9.1 Deliverables Sign-Off. DBS will submit Deliverables to Ceres for "Sign-
Off" using a Sign-Off Form (in the form currently used by DBS when
submitting Deliverables to Ceres). Ceres will sign and return the Sign-Off
Form or a Deficiency Report (in a form to be agreed between DBS and
Ceres), and will provide the Eurex Entities with a copy of such document.
Ceres will examine the Deliverables for any discrepancies between the
required functionality and other characteristics of the Deliverable
required by this Agreement and the actual functionality and other
characteristics of the Deliverable as submitted ("Deviations"). However,
Ceres is under no obligation to examine the technical solutions contained
in the Deliverables. The Deficiency Report will contain a detailed
description of any Deviations. A Deficiency Report requires the signature
of Ceres' Program Manager. DBS will correct the Deviations without undue
delay and resubmit the Deliverable. Subject to Section 9.2, this process
will be repeated until all Deviations have been corrected. Failure to
submit the Sign-Off Form or a Deficiency Report within two weeks of
receipt of the Deliverable will constitute Sign-Off.
9.2 Repeat Attempts. If DBS fails to correct a Deviation listed in a
Deficiency Report on the first try, DBS will not be entitled to charge for
further work required to correct the Deviation. Notwithstanding the
foregoing, DBS will not charge any additional fee for any work required to
correct a Deviation in a Deliverable to the extent that Ceres is paying a
fixed fee for such Deliverable. Should DBS fail to cure a Deviation within
a reasonable time, Ceres may subcontract the work to a third party, and
DBS will return any remuneration already received for the Deliverable to
the extent that the DBS work cannot reasonably be used. DBS will co-
operate with the new subcontractor. The liability of DBS to make payments
under this Section 9.2 is limited to the amount which DBS received for the
corresponding work.
9.3 No Deviation. If an alleged Deviation described in a Deficiency Report
is found not to exist and if the alleged Deviation instead constitutes a
change in the scope of the Deliverable, DBS will notify Ceres accordingly,
and Ceres can then initiate the Change Request procedure. If Ceres and DBS
disagree about the existence of a Deviation and the disagreement is not
resolved by the Program Managers, either DBS or Ceres can initiate the
Problem Report procedure.
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9.4 Services. Services, which are not part of any Deliverable (i.e., training
services), are not subject to the Sign-Off procedures; rather, Ceres can
register complaints on a Deficiency Report if it is dissatisfied with a
Service. During the performance of Services any deficiencies must be
submitted in writing to DBS (with a copy to the Eurex Entities). If
documentary evidence clearly shows that Ceres was aware of a deficiency in
the Service or should have been aware of the deficiency in the Service
exercising a highly professional standard of care, and that Ceres fails to
inform DBS (with a copy to the Eurex Entities) within two weeks of
becoming aware thereof, Ceres cannot assert any claims or other rights
against DBS resulting from the deficiency in the Service prior to
notification, but Ceres can require DBS to correct the deficiency in the
Service without undue delay. DBS must correct the deficiency at its
expense.
10. Service Fees, Payment
10.1 Service Fee. Schedules 4.1 and 10.2 and, if applicable, the Change
Requests will specify the fees ("Service Fees"), reimbursable expense
categories and payment schedules payable by Ceres to DBS. Ceres will only
reimburse DBS for those categories of expenses identified in the Schedules
and the Change Requests or elsewhere in this Agreement and only to the
extent the expenses are reasonable and documented.
10.2 Time and Materials. If this Agreement, a Schedule or a Change Request
does not specify a Service Fee or specifies that charges will be on a
time-and-materials basis, DBS will charge on a time-and-materials basis
according to the DBS catalogue of prices attached as Schedule 10.2 (the
"DBS Catalogue of Prices").
10.3 Invoices. DBS will send invoices to Ceres. Each invoice will include
supporting information for the specific line items which are charged.
Ceres can conduct an audit of DBS' records to the extent reasonably
required to confirm the accuracy of the invoiced amounts (e.g., reviewing
timesheets, travel expense reports). If the audit reveals a variance of
more than 5% in a calendar quarter between the invoiced amount and, if
less, the correct amount, DBS will reimburse Ceres for the cost of the
audit.
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10.4 VAT, Tax Laws. The parties acknowledge that the Operation Services
provided by DBS are under current German law not subject to Value Added
Tax. Accordingly, the Service Fees invoiced by DBS to Ceres are net of any
Value Added Tax. In case all or part of the Operation Services become
subject to Value Added Tax under the then current law and DBS is required
to pay and has paid such tax, Ceres shall reimburse DBS the charge of
Value Added Tax in the amount as stipulated by law for the respective
service. If tax laws change after the execution of this Agreement so that
Ceres is required to pay any new non-refundable taxes to a tax authority
on payments made to DBS under this Agreement, Ceres can require DBS to
commence negotiations on an adjustment of this Agreement in order to
minimize the tax detriment to Ceres. No party is under an obligation to
accept an adjustment which would have a materially detrimental financial
impact on it or one of its Affiliates. If DBS and Ceres do not agree on an
adjustment within two months of receipt of the request to commence
negotiations, the party for which there would be a materially detrimental
financial impact on itself or one of its Affiliates can terminate this
Agreement by written notice effective at the end of the calendar month
following the month in which the notice is given. DBS will charge for its
efforts to wind down the work under this Agreement or transfer the work to
any other party or third party on a time-and-materials basis.
Prior to receiving any payment which may be subject to United States
withholding taxes from Ceres, DBS shall confirm in writing that such
payment is not subject to withholding taxes or deliver to such party two
original copies of Internal Revenue Service Form "W-8BEN" or "W-8ECI" (or
any successor forms), accurately completed and duly executed by the issuer
of the invoice, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the regulations
issued thereunder to establish that the issuer of the invoice is not
subject to deduction or withholding of United States federal income tax
with respect to such payments. DBS hereby agrees, from time to time after
the initial delivery by DBS of such confirmation, forms, certificates or
other evidence whenever a lapse in time or change in circumstances renders
such confirmation, forms, certificates or other evidence obsolete or
inaccurate in any material respect, to deliver to Ceres a reconfirmation
that such payment is not subject to withholding tax or two new original
copies of Internal Revenue Service Form "W-8BEN" or "W-8ECI" (or any
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successor forms) accurately completed and duly executed by the issuer of
the invoice, together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations issued
thereunder to confirm or to establish that the issuer of the invoices is
not subject to deduction or withholding of United States federal income
tax with respect to any such payments. Notwithstanding this Section 10.4,
the relevant Service Fees shall be paid net of any U.S. withholding tax
caused by the failure of DBS to provide Ceres with such forms,
certificates or other evidence.
10.5 Payments. All payments are due within 20 Business Days of receipt of an
undisputed invoice and are not subject to any deductions for prompt
payment (Skonto). All payments will be made free of bank charges or other
deductions to an account which DBS specifies in writing to Ceres.
10.6 Set-Off. Legal rights of any party to set-off against claims of the other
party are excluded, except where the corresponding claim of such party has
either been determined by a final arbitral award pursuant to Section 18.9
or expressly acknowledged by the other party in writing.
11. Service Levels, Warranties
11.1 Service Levels, Exclusion of Warranties. Except as set forth in the
service levels attached as Schedule 11 and in any Change Request, all
claims under warranty (Gewahrleistungsanspruche) against DBS with regard
to the Operation Services under Schedule 4.1 or a Change Request are
excluded. However, if DBS has a claim under warranty or for any other
reason against any subcontractor (other than an Affiliate of DBS) or other
third party related to any of the Operation Services, DBS will inform
Ceres about the claim and, at the request of Ceres, assign the claim to or
assert the claim for the account of Ceres.
11.2 General Warranties. The condition of the Deliverables (vereinbarte
Beschaffenheit) shall be as follows: (i) each Deliverable will be free
from all viruses, worms, trojan horses, cancelbots and other contaminants,
including, without limitation, any codes or instructions that can be used
to access, modify, delete or damage any data files or other computer
programs used for the operation of the CBOT Electronic Market; and
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(ii) subject to Section 14.1.5, the Deliverables do not, and will not,
infringe, misappropriate or otherwise violate any proprietary right of any
third party (the exclusive remedies for this last warranty (ii) are set
forth in Section 14). These general warranties apply to standard third
party software (e.g., standard Microsoft products) only to the extent that
DBS has corresponding warranties from a third party.
12. Limitation of Liability
12.1 Conduct. DBS or the Eurex Entities, as the case may be, will each be
severally liable (including consequential damages) to Ceres and CBOT and
only to the extent that DBS' or the Eurex Entities', as the case may be,
intentional misconduct or gross negligence causes or results in any
damages or harm to Ceres or CBOT. Ceres will be liable (including
consequential damages) to DBS and to the Eurex Entities only to the extent
CBOT's or Ceres' intentional misconduct or gross negligence causes or
results in any damages or harm to DBS or the Eurex Entities. If DBS, on
the one hand, or CBOT or Ceres, on the other hand, notifies the other that
it has failed to properly perform an obligation, even if the failure was
without fault, and the notified party fails to cure the failure within a
reasonable period, the notified party will be liable only in the event
such failure to cure is a result of gross negligence or intentional
misconduct. It is the understanding of the parties that the preceding
sentence reflects their understanding of Section 11.1, last sentence, of
the Systems Operation Agreement.
12.2 Breach of Contract. This Agreement (including Schedules and Change
Requests) contains provisions on liability which apply exclusively in
specified circumstances (e.g., performance credits); to the extent this is
the case, all further liability shall be excluded. To the extent that a
specific provision does not exist and a party, as a result of negligent
conduct, materially breaches a contractual obligation, that party will,
subject to the limitation set forth in Section 12.3, be liable for the
harm suffered by the other parties, except for consequential damages.
12.3 Limitation of Liability. The total liability of DBS and the Eurex
Entities, on the one hand, and Ceres and CBOT, on the other hand, for
violations of any obligations under or in relation to this Agreement and
the Software Maintenance Agreement is limited to (Euro) [**] per calendar
year, whereby, for the purposes only of this provision, a liability of
DBAG and/or SWX under the Software Maintenance Agreement shall be deemed
a
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liability of DBS and the Eurex Entities. This limit also applies to claims
arising under provisions on liability which apply exclusively in specific
circumstances (e.g., performance credits). This Section 12.3 does not
apply to claims under Section 14.
12.4 Claims Exceeding Limitation of Liability. If DBS, on the one hand, or
Ceres or CBOT, on the other hand, violate its obligations under this
Agreement and the Software Maintenance Agreement to the extent that the
other party would have claims against the violating party in excess of
(Euro) [**] in any calendar year but for Section 12.3, the party whose
claim is limited by Section 12.3 can terminate its participation in this
Agreement pursuant to Section 17.2 within one month after notifying the
other party in writing of the claim and the amount in excess of (Euro)
[**] ("Claim"). A party which receives notice of the Claim under this
Section 12.4 can cancel the effect of the notice of termination by paying
to the terminating party the excess amount stated by the terminating party
in its notice under the first paragraph of this Section 12.4 within one
week of receiving the notice of termination; such payment does not
prejudice the rights of any of the parties under the Problem resolution
procedures or in arbitration.
12.5 Sole Liability. The Eurex Entities shall each be jointly and severally
liable to Ceres and CBOT solely for damages arising from their own
intentional misconduct or gross negligence. Under no circumstances shall
the Eurex Entities be liable to Ceres or CBOT jointly and severally
(gesamtschuldnerisch) with DBS (i) for the performance of, or DBS' or its
subcontractors' failure to perform, any of DBS' obligations pursuant to
this Agreement, or (ii) any conduct (Section 12.1) of, or breach of
contract (Section 12.2) by, or warranties or convenants of, DBS or any of
its subcontractors.
12.6 Insurance. The limits on liability in Section 12.3 do not apply to the
extent that a party maintains insurance policies which would provide
coverage in excess of the limits on liability. The parties will inform
each other about current and future insurance policies which provide
coverage in excess of the limits in Section 12.3. At the request of Ceres,
DBS will have Ceres named as additional beneficiary under existing
insurance policies; Ceres will bear any additional costs. DBS will
conclude future insurance policies giving coverage in excess of the limits
in Section 12.3 upon receiving corresponding instructions from Ceres and
an undertaking by Ceres to
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reimburse DBS for the corresponding insurance premiums. Ceres can
determine the insurer, the beneficiaries and other aspects of the
insurance policies.
13. Personnel
13.1 Qualifications. DBS will only assign personnel to the Operation Services
who are suitably qualified for the performance of DBS' obligations under
this Agreement. Ceres will only assign personnel to the Operation Services
who have sufficient knowledge of the aspects of the relevant business,
functional requirements, practices and areas of expertise in order to
provide efficient cooperation with DBS in performing the work under the
Schedules or the Change Requests.
13.2 Transfer. DBS and Ceres, respectively, can require at any time that an
individual assigned to the Operation Services be removed if such request
is based on plausible reasons and not purely arbitrary. Such a demand is
only permissible if the demanding party can provide clear and convincing
evidence that the continued presence of the individual will endanger the
successful completion of the work for which the individual is responsible.
All demands for transfer or removal must be in writing and must state the
reasons for the demand. The other party must comply with the request
within two weeks and provide a suitable replacement without undue delay or
deliver a Problem Report to the demanding party.
14. Indemnification
14.1 Third Party Intellectual Property.
14.1.1 Subject to Section 14.1.5, DBS will indemnify, defend and hold
Ceres and CBOT harmless for all losses, damages, expenses and
costs (excluding consequential damages except in the case of
intentional misconduct or gross negligence on the part of DBS)
related to or arising from all claims asserted by third parties
against Ceres or CBOT caused by the performance of the Operation
Services in which the third parties allege violations of
intellectual property rights or of similar proprietary rights
(e.g., under laws against unfair competition).
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14.1.2 Ceres and CBOT will inform DBS without undue delay when such
claim is asserted against it. DBS will select, at its own expense,
legal counsel reasonably acceptable to Ceres and CBOT for any
proceedings, although Ceres and CBOT are permitted to have, at its
own expense, legal counsel of its choice also participate in the
proceedings.
14.1.3 Neither Ceres nor CBOT is permitted to settle any claims of third
parties covered by Section 14.1.1 so long as DBS fully complies
with its obligations under the above provisions, unless such
settlement includes a release of DBS from liability under the
claim that is the basis of the proceeding.
14.1.4 If Ceres or CBOT, as the case may be, are prohibited in
proceedings about intellectual property rights (other than the
Texas Case) or similar proprietary rights directed against any of
them from using the System or any part thereof, or if such a
prohibition is probable in its reasonable estimation, DBS, at its
own cost, will use reasonable efforts to obtain the right for
Ceres to continue to use the System on commercially reasonable
terms or use reasonable efforts to modify the System in such a
manner that the violation of the intellectual property right or
similar proprietary right no longer exists. This Agreement will
then apply to the new or modified System.
14.1.5 The parties are aware of the claims based on U.S. Patent No.
4,903,201 (the "Patent") asserted in the case captioned eSpeed,
Inc. and Electronic Trading Systems Corporation v. Board of Trade,
et al., Civil Action No. 3-99CV1016-M, pending in the United
States District Court for the Northern District of Texas (the
"Texas Case"). None of the parties to this Agreement have any
reason to believe that, when used in the manner contemplated in
this Agreement, any component of either the Operation Services or
the System do or will infringe any valid patent rights of the
plaintiff in the Texas Case. Notwithstanding any other provision
of this Agreement, no party shall have any liability to another
party under this Agreement arising out of or in connection with
the Patent or any claims asserted with respect thereto, in the
Texas Case or otherwise, based upon the Patent. If the decision in
the Texas Case is in favor of the plaintiff, DBS and Ceres will
use good faith efforts to
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modify, if applicable, the Operation Services so that the Texas
Case does not affect the performance of the Operation Services.
Ceres shall pay for any such efforts of DBS on a time-and-
materials basis.
14.2 General Indemnification.
14.2.1 Each party will hold each other party harmless from any claim
asserted against it by such other party's respective personnel
or subcontractors for personal injury or damage to property
incurred while such personnel is at such party's or an
Affiliate's facilities in connection with this Agreement unless
the harm was the result of intentional misconduct or gross
negligence on the part of the other party or its Affiliate. Each
party will also hold each other party harmless from claims
asserted against such party by third parties resulting from
intentional misconduct or negligence of such party's personnel.
14.2.2 Each party will notify each other without undue delay if a
claim is asserted for which a party will be seeking
indemnification. The right to indemnification also covers the
indemnified party's costs in defending against the claim so long
as the indemnified party coordinates the defense of the claim
with the party against whom indemnification is claimed. A party
seeking indemnification is not permitted to settle the matter so
long as the party against whom indemnification is claimed is in
compliance with its obligations under this Section 14.2.2 unless
such settlement includes a release of indemnifying party from
liability under the claim that is the basis of the proceeding.
15. Confidentiality
15.1 Confidential Information. The parties acknowledge that they have
received and will receive confidential information in connection with
this Agreement and the transactions contemplated hereby related to and
including trade secrets and business information regarding the business,
financial situation, products and prospects of the other parties and
their Affiliates ("Confidential Information"). For purposes hereof,
Confidential Information includes but is not limited to (i) all
documents and other media given or shown to any other party containing
the legend "confidential", (ii) all documents, other media and other
information (whether or not in written form)
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ancillary or related to such documents, (iii) all documents, other media
and other information (whether or not in written form) prepared by the
receiving party to the extent that they contain, reflect or are based
upon, in whole or in part, any Confidential Information furnished by the
disclosing party, (iv) except as set forth in any marketing plan or
press release to which the parties mutually agree in writing, all
information related to the subject matter of this Agreement, (v) all
information that is Confidential Information as defined in Section 7.2
of the Non-exclusive Software License Agreement, and (vi) all
Confidential Information as defined in each of the Preexisting
Agreements. Confidential Information does not include any information:
(i) which becomes generally available to the public other than as a
result of a breach of this Section 15.1, (ii) which is received from a
third party provided that the third party is not bound by an obligation
of confidentiality with respect to such information, or (iii) which was
legally in a party's possession without obligations of confidentiality
prior to such information being furnished as Confidential Information.
15.2 Use. The parties agree that all Confidential Information will be used
only for the purpose of evaluating and completing the transactions and
business objectives contemplated herein and in the Software Maintenance
Agreement. The receiving party of each item of Confidential Information
will use reasonable efforts, taking into account the materiality and
proprietary nature of the particular Confidential Information, to
protect such Confidential Information from unauthorized use or
disclosure (intentional, inadvertent or otherwise) and, in any event,
will exercise at least the same reasonable level of care to avoid any
such unauthorized use or disclosure as it uses to protect its own
information of a like nature. For the avoidance of doubt, the
Confidential Information of a party may not be used by another party and
may only be disclosed by DBS to another party for the purpose of
coordinating the provision of services by DBS to them during the term of
this Agreement.
15.3 Exceptions. Notwithstanding the foregoing, the parties may disclose
Confidential Information to third parties with the prior written consent
of the other parties hereto, and the parties will be free to disclose
Confidential Information without the consent of the other parties to
their attorneys and accountants, their clearing organizations, and to
governmental entities and applicable self-regulatory organizations in
connection with obtaining regulatory approvals to the extent necessary
and reasonably appropriate to
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obtain such approvals or as otherwise required by law, rules of, or
direction by, regulatory authorities having jurisdiction over the
disclosing party, and only to the extent required by or reasonably
requested by such authority, as well as to their directors, employees,
attorneys, consultants and agents on a need-to-know basis in connection
with their duties, as long as such persons are advised of the
confidential nature of such information and their obligation to protect
it as confidential and are bound by confidentiality undertakings
consistent with this Section 15.
15.4 Data Access. DBS will make available to Ceres and CBOT its respective
proprietary data as and when reasonably requested by Ceres or CBOT and
in accordance with the current practice prior to the Effective Date
under the Preexisting Agreements.
15.5 Return/Destruction. If this Agreement is terminated for any reason, the
receiving parties of each item of Confidential Information, including
documents, contracts, records or properties, will return it to the
disclosing party thereof or, in the receiving party's discretion,
destroy it and provide a certification to the disclosing party that all
such Confidential Information has been returned or destroyed immediately
after termination, except to the extent that retention of any
Confidential Information is expressly permitted by any other written
agreement among the parties or their Affiliates. The provisions of this
Section 15 will survive the termination of this Agreement.
16. Public Notices
16.1 Press Releases. Notwithstanding Section 11.1 of the Reorganization
Agreement, and subject to the other parties' prior written approval,
which will not be unreasonably withheld, each party and its
subcontractors may advertise and publicize the fact that the parties are
cooperating on the Operation Services. The parties will cooperate in
drafting press releases concerning the Operation Services.
16.2 Disputes. Notwithstanding Section 11.1 of the Reorganization Agreement,
any statement to the press (or to a third party with the intent that the
third party forward the statement to the press) concerning a Problem in
which one party allocates blame for the Problem to another party
requires the written approval of all parties, which consent will not be
unreasonably withheld.
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16.3 Terms of Agreement. No party will disclose the terms and conditions of
this Agreement or proposed Change Requests except to the other parties
or as reasonably required to perform its obligations or as required by
law, or for such disclosures as may be necessary or desirable in the
ordinary course of such party's business including, without limitation,
disclosures with attorneys, consultants, accountants and similar
professionals.
17. Termination, Term
17.1 Term. The term of this Agreement (i) begins as of the Effective Date,
and (ii) ends on December 31, 2003, unless terminated earlier pursuant
to Sections 17.2 or 17.3.
17.2 Termination for Cause (Kundigung aus wichtigem ▇▇▇▇▇).
17.2.1 Each of DBS and Ceres may terminate this Agreement, if the
other party after receiving a written reminder (Mahnung) setting
a reasonable deadline for compliance, has not complied with
terms of an agreement resolving a Problem within two weeks of
conclusion of a Problem Report procedure relating to such
Problem. They may also terminate this Agreement with immediate
effect without first implementing the Problem Report procedure
if the other party intentionally commits a material breach of
the obligation of confidentiality (Section 15).
17.2.2 The Eurex Entities may terminate this Agreement for cause, if
CBOT and/or Ceres are breaching their obligations under the
Network Restriction. Either of the Eurex Entities, on the one
hand, and CBOT and Ceres, on the other hand, may terminate this
Agreement for cause in the event the other party is in breach
with its obligations under the Product Restrictions.
17.2.3 DBS may terminate this Agreement upon the public announcement
of, or the filing of a notice with the SEC relating to, a Change
of Control of any member of the CBOT Group other than C-B-T
Corporation and its legal successors and assigns (to the extent
it remains in its present lines of business), provided that (i)
all Service Fees that would have to be paid by Ceres throughout
the entire regular term of the Agreement (i.e. through December
31, 2003) are
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immediately due and payable, whereby it shall be assumed that the
Operation Services would have been continued to be provided as it
was the case on the date of the declaration of termination, and
(ii) DBS will ensure termination assistance for a period no
longer than two months from the declaration of termination by
DBS, and (iii) in the event a public announcement or SEC filing
takes place after December 31, 2002, only the closing of the so
announced or notified transaction shall trigger the termination
right and termination assistance shall in such case be made
available for a period of four months from the declaration of
termination, but in no event beyond December 31, 2003.
Termination assistance shall mean that DBS shall continue to
perform the Operation Services, and Ceres shall have the
obligation to pay for the Operation Services, each as set forth
in this Agreement, through the end of the termination assistance.
To the extent required by a corresponding written notice of
Ceres, DBS must decide within 30 days of receipt of such notice
whether or not to exercise the right to terminate pursuant to
this section.
17.2.4 DBS may terminate this Agreement upon the public announcement of,
or the filing of a notice with the SEC relating to, the
introduction of a system succeeding the System after the end of
the Follow-up Agreements (as defined in the Reorganization
Agreement), provided that (i) all Service Fees that would have to
be paid by Ceres throughout the entire regular term of the
Agreement (i.e. through December 31, 2003) are immediately due
and payable, whereby it shall be assumed that the Operation
Services would have been continued to be provided as it was the
case on the date of the declaration of termination, and (ii) DBS
will ensure termination assistance (as described in Section
17.2.3) for a period no longer than two months from the
declaration of termination by DBS, and (iii) this Section 17.2.4
applies only in the event such public announcement or SEC filing
takes place before December 31, 2002 and if another exchange or
contract market, or any of its respective Affiliates, is directly
or indirectly involved in providing the succeeding system or
services related thereto. This Section 17.2.4 does not apply with
regard to the introduction of any system which solely relates to
open outcry trading, clearing or market surveillance. To the
extent required by a corresponding
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written notice of Ceres, DBS must decide within 30 days of
receipt of such notice whether or not to exercise the right to
terminate pursuant to this section.
17.2.5 This Section 17.2 does not limit the rights of the parties to
terminate this Agreement for cause (Kundigung aus wichtigem
▇▇▇▇▇) generally available under German law.
17.2.6 In the event DBS terminates this Agreement for cause (Kundigung
aus wichtigem ▇▇▇▇▇), Ceres will hold DBS harmless from the
expenses for leased lines and leases for premises and equipment
and other expenses relating to using such items by Ceres and
charged to DBS by third parties and subcontractors until the end
of the term of the agreement with the respective party. The right
of DBS to indemnification under the preceding sentence does not
apply if the third party or subcontractor charges expenses to DBS
due to DBS having violated its obligations to the third party or
subcontractor.
17.3 No Termination for Convenience. For the avoidance of doubt, no party
shall be entitled to terminate this Agreement for convenience.
17.4 Termination of Other Agreements. This Agreement shall terminate in the
event either of the Non-exclusive Software License Agreement or the
Software Maintenance Agreement terminates as of the date on which such
agreement terminates. DBS will be entitled to payment on a time-and-
materials basis for the work performed after termination for the purpose of
winding down. For the avoidance of doubt, this Agreement is deemed to be
terminated pursuant to Section 17.2.3 in the event that the Non-Exclusive
Software License Agreement is terminated pursuant to its Section 8.2 or the
Software Maintenance Agreement is terminated pursuant to its Section
17.2.3.
18. General Provisions
18.1 Notices. Except as expressly set forth to the contrary in this Agreement,
all notices, requests or consents required or permitted under this
Agreement must be in writing and must be either (i) delivered by hand, (ii)
mailed by certified or registered mail, addressed to the recipient, postage
paid, and registered or certified with return receipt requested, (iii) sent
by overnight courier, or (iv) transmitted by facsimile transmission,
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with confirmation of transmission, and are given when received by the
recipient. All notices, requests and consents to be sent to a party must be
sent to or made at the address given for that party in the heading of this
Agreement, or such other address as that party may specify by notice to the
other parties.
18.2 No Side Agreements, Amendments. While there are related agreements to which
some or all of the parties hereto are parties (the Reorganization
Agreement, the Non-exclusive Software License Agreement, the Software
Maintenance Agreement and the surviving provisions of the Preexisting
Agreements), this Agreement constitutes the complete agreement of the
parties with respect to the matters set forth herein, and there are no oral
or written side agreements to this Agreement. Amendments or supplements to
this Agreement, including this Section 18.2, must be in writing and signed
by all of the parties to be effective.
18.3 Savings Clause. The invalidity of individual provisions in this Agreement
will not result in the entire Agreement being invalid. An invalid provision
will be deemed to have been replaced by a valid provision which comes as
close as possible to achieving the commercial purpose of the invalid
provision.
18.4 Assignment. No party may assign this Agreement or any portion hereof, by
Change of Control, operation of law or otherwise, without obtaining the
prior written consent of the other parties. The parties will grant their
consent to the assignment of rights or obligations by a party to an
Affiliate of such party if (i) the assigning party remains liable for any
assigned obligations as a jointly and severally liable guarantor
(selbstschuldnerische Burgschaft) with the assignee, (ii) the assigning
party, together with its rights and obligations under this Agreement,
assigns its rights and obligations, if any, under the Reorganization
Agreement, the Non-exclusive Software License Agreement and the Software
Maintenance Agreement to the assignee, or (iii) in case of Ceres being the
assigning party, CBOT assumes an additional performance guarantee as set
forth in Section 18.10 with regard to the assignee. The exceptions to the
definition of "Change of Control" for CBOT do not require the consent of
the other Parties under this Section 18.4. For the avoidance of any doubt,
the above shall not entitle a party to invoke a preliminary injunction or
to seek any other remedy in order to prevent the occurrence of a Change of
Control.
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18.5 Applicable Law. This Agreement is governed by and subject to the laws of
the Federal Republic of Germany, to the exclusion of its conflicts of law
rules. The laws under the UN Treaty on the International Sale of Goods
shall not apply.
18.6 Language. English is the official language of this Agreement. Any notice,
request or consent must be in English.
18.7 Survival. Any provisions of this Agreement that can reasonably be
interpreted as being intended to survive the termination of this Agreement
will survive the termination of this Agreement.
18.8 Further Assurances. The parties will execute and deliver such further
documents and instruments, make such other filings and take such further
actions in addition to those contemplated herein as may be reasonably
requested by the other parties (other than the material payment of money)
to carry out the intents and purposes of this Agreement.
18.9 Arbitration Procedure. Except with regard to actions seeking temporary or
permanent injunctive relief, any dispute arising under or in connection
with this Agreement between or among any parties to this Agreement will be
finally settled by arbitration in accordance with the arbitration rules of
the United Nations Convention on International Trade Law (the "UNCITRAL
Rules"). Prior to commencing arbitration, the parties, to the extent
applicable, must have complied with the Problem procedures set forth in
Section 8.
18.9.1 The arbitration will be conducted by three (3) arbitrators. Such
arbitrators are to be appointed in accordance with Article 7 of
the UNCITRAL Rules.
18.9.2 Where there are multiple parties, whether as claimant or as
respondent the multiple claimants, jointly, and the multiple
respondents, jointly, shall nominate an arbitrator pursuant to
Article 7 of the UNCITRAL Rules. In the absence of such a joint
nomination and where all parties are unable to agree to a method
for the constitution of the Arbitral Tribunal, the London Court
of International Arbitration (the "Appointing Authority" for the
purposes of the application of the UNCITRAL Rules) may appoint
each member of the Arbitral Tribunal and shall designate one of
them to act as chairman. In such
New Systems Operations Agreement-Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
-29-
case the Appointing Authority shall be at liberty to choose any
person it regards as suitable to act as arbitrator.
18.9.3 The place of arbitration shall be London. The proceedings shall
be conducted in the English language exclusively.
18.9.4 The parties acknowledge that irreparable damage may occur in the
event of breach of any of the terms of this Agreement.
18.9.5 If an arbitration under this Agreement coincides with an
arbitrable claim under the Software Maintenance Agreement, all
such matters must be asserted in the same arbitration
proceedings.
18.10 Performance Guarantee.
18.10.1 CBOT hereby unconditionally and irrevocably guarantees to DBS the
full and timely performance by Ceres and any of its permitted
assigns or legal successors (individually and collectively
referred to as "Ceres") of all of Ceres' obligations (the
"Performance Obligations") under or pursuant to this Agreement,
including, without limitation, the indemnity obligations
hereunder, as and when the same shall be due to be performed
under this Agreement, and all liabilities of Ceres under this
Agreement in the event of any breach by Ceres of any term hereof.
CBOT hereby waives any provision of any statute, regulation or
judicial decision otherwise applicable hereto which restricts or
in any way limits the rights of an obligee against a guarantor or
surety following a default or failure of performance by an
obligator with respect to whose obligations the guarantee or
surety is provided.
18.10.2 DBS may proceed to protect and enforce any or all of its rights
under this Section 18.10 pursuant to Section 18.9, whether for
the specific performance of any covenants or agreements of Ceres
under or pursuant to this Agreement, and shall be entitled to
require and enforce the performance by CBOT of all acts and
things required to be performed hereunder by Ceres.
New Systems Operations Agreement-Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
-30-
18.10.3 CBOT shall not be entitled to and does hereby waive any and all
defenses now or hereafter available to guarantors, sureties and
other secondary parties at law or in equity, with the exception
of any defenses Ceres may have against DBS that are available to
CBOT.
18.10.4 DBS shall be entitled to proceed on first demand directly against
CBOT in respect of any Performance Obligation hereunder without
any requirement that it first make any demand against or exhaust
any remedies available to it from Ceres or to take any other
steps.
Board of Trade of the City of Chicago, Inc. Ceres Trading Limited Partnership, by
Electronic Chicago Board of Trade, Inc., its
managing general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------- -------------------
Date: 7/10/02 Date: 7/10/02
------------------- -------------------
Deutsche Borse Systems AG Eurex Zurich AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------- --------------------
Date: 7/11/02 Date: 7/11/02
------------------- --------------------
Eurex Frankfurt AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Date: 7/11/02
-------------------
New Systems Operations Agreement-Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 1.1 to the New Systems Operations Agreement
Glossary of Defined Terms
"Access Points" is defined in item 3.1 of Schedule 10.2.
"Affiliate" is an "Affiliate" as defined in the Reorganization
Agreement.
"Agreement" is defined in the Heading and includes the
Schedules.
"Appointing Authority" is defined in Section 18.9.2.
"Business Day" means a day where banks are open in Chicago,
Frankfurt am Main and Zurich.
"CBOT" is defined in the initial paragraph of this
Agreement.
"CBOT Electronic Market" is defined in the Recitals, Section B.
"CBOT Users" is defined in the Recitals, Section B.
"Ceres" is defined in the initial paragraph of this
Agreement.
"Change of Control" means a "Change of Control" as defined in the
Reorganization Agreement.
"Change Request" is defined in Section 4.4.
"Chicago Backend" is defined in the Recitals, Section B.
"Claim" is defined in Section 12.4.
"Confidential Information" is defined in Section 15.1.
"DBAG" is defined in the Recitals, Section A.
"DBS" is defined in the initial paragraph of this
Agreement.
"DBS Catalogue of Prices" is defined in Section 10.2.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 1.1 to the New Systems Operations Agreement
-2-
"Deficiency Report" means the Deficiency Report described in Section
9.1.
"Deliverables" is defined in Section 4.3.
"Deviations" is defined in Section 9.1.
"Effective Date" means the "Effective Date" as defined in the
Reorganization Agreement.
"Escalation Committee" is defined in Section 5.6.
"Eurex Entities" is defined in the Recitals, Section A.
"Eurex Exchanges" is defined in the Recitals, Section A.
"Eurex Frankfurt" is defined in the initial paragraph of this
Agreement.
"Eurex Manager" means the Eurex Manager described in Section 5.5.
"Eurex Operations" means all operations using the Eurex Software as
technological basis, including, without limitation,
the Eurex Exchanges, but excluding the CBOT
Electronic Market.
"Eurex Software" means the "Eurex Software" as defined in the
Reorganization Agreement.
"Eurex Users" is defined in the Recitals, Section B.
"Eurex Zurich" is defined in the initial paragraph of this
Agreement.
"Facilities" is defined in Section 5.3.3.
"Freelancer" is defined in Section 5.7.
"Network" is defined in the Recitals, Section A.
"Network Restriction" means the "Network Restriction" as defined in the
Reorganization Agreement.
"Non-exclusive Software is defined in Section 2.2.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 1.1 to the New Systems Operations Agreement
-3-
License Agreement"
"Operation Services" is defined in Section 2.1.
"Patent" is defined in Section 14.1.5.
"Performance Obligations" is defined in Section 18.10.1.
"Preexisting Agreements" means the "Preexisting Agreements" as defined in
the Reorganization Agreement.
"Problem" is defined in Section 8.1.
"Problem Report" is defined in Section 8.3.
"Product Restrictions" means the "Product Restrictions" as defined in the
Reorganization Agreement.
"Program Manager" means the Program Manager described in Section 5.4.
"Release a/c/e 1.0" shall have the meaning as set forth in the
Non-exclusive Software License Agreement.
"Reorganization Agreement" is defined in the Recitals, Section B.
"Schedule" means a schedule to this Agreement.
"Service Fees" is defined in Section 10.1.
"Services" is defined in Section 4.3.
"Sign-Off" means, with respect to a Deliverable, sign off of
such Deliverable as set forth in Section 9.1.
"Sign-Off Form" means the Sign-Off Form described in Section 9.1.
"Software Maintenance is defined in Section 2.2.
Agreement"
"SWX" is defined in the Recitals, Section A.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 1.1 to the New Systems Operations Agreement
-4-
"System" means the "System" as defined Reorganization
Agreement.
"Systems Operations
Agreement" is defined in the Recitals, Section B.
"Tasks" is defined in Section 4.3.
"Texas Case" is defined in Section 14.1.5.
"UNCITRAL Rules" is defined in Section 18.9.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 4.1 to the New Systems Operations Agreement
Scope of Operations Services
The scope of the Operation Services shall be as described, only with regard to
the operation of the Chicago Backend and the Network, in the DBS proposal dated
January 31, 2000 attached hereto as amended or defined by this Agreement, other
Schedules or any Change Request under the Systems Operations Agreement or this
Agreement. Any reference to the CBOT/Eurex Joint Venture or LLC shall be deemed
a reference to CBOT and/or Ceres as appropriate.
[Insert DBS presentation "IT-Services to CBOT/Eurex Joint Venture" dated 31-Jan-
2000, 8 p.m.]
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 5.4 to the New Systems Operations Agreement
Program Managers/Eurex Manager
Manager Substitute
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DBS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------
Ceres ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------------------------------------------
Eurex ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedules 6.1 to the New Systems Operations Agreement
CFTC Regulation 1.59 Letter
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Board of Trade of the City of Chicago, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Re: CFTC Regulation 1.59
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
I am retained or employed and supervised by Deutsche Borse Systems AG/Eurex
Zurich AG/Eurex Frankfurt AG in connection with the New Systems Operations
Agreement or the provision of the services described therein for the benefit of
the CBOT Electronic Market. I have been provided with and reviewed the attached
copy of CFTC Regulation 1.59 and hereby agree to abide by its terms.
I consent to the jurisdiction of the Commodity Futures Trading Commission (CFTC)
solely in connection with any inquiry or proceeding relating to CFTC Regulation
1.59.
Sincerely,
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
DBS Catalogue of Prices
1. General Provisions
1.1 All amounts are in Euro (Euro), without VAT.
1.2 All amounts which are to be charged on a monthly basis are charged per
calendar month and are determined on the basis of whether or not the
individual billing criterion is satisfied on the calculation date
(Stichtag) which is generally the 15/th/ of each month. For example, if a
monthly fee is charged for a Participant (as defined in Section 3.1 below)
and the Participant is connected on the 15th day or earlier of a calendar
month, the full monthly fee is charged. If the Participant is connected on
the 16/th/ day or later of the month, no fee is charged for the month. DBS
can elect to charge for part of a month on a pro rata temporis basis by
giving three full calendar months notice prior to the month for which the
change takes effect.
1.3 The descriptions of services in this catalogue are solely for the purpose
of identifying the items for which remuneration is charged and shall not be
used for interpreting the scope of work. The technical descriptions of
services are set forth in other Schedules and, if applicable, in any Change
Requests.
2. Consulting
2.1 Description of Work
These services are consulting and support services including the selection
and introduction of software, operation and project management, all as
described in more detail in the Agreement, its Schedules and in any Change
Requests.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-2-
2.2 Remuneration
Unless a fixed price is agreed, the following hourly rates apply for work
performed by individuals in the following DBS classifications, regardless
of whether the individuals are DBS employees, Freelancers or subcontractor
employees.
-------------------------------------------------------
Price Levels Price per hour
-------------------------------------------------------
Analyst (Euro) [**]
-------------------------------------------------------
Junior Consultant (Euro) [**]
-------------------------------------------------------
Specialist (Euro) [**]
-------------------------------------------------------
Consultant (Euro) [**]
-------------------------------------------------------
Senior Consultant (Euro) [**]
-------------------------------------------------------
Manager (Euro) [**]
-------------------------------------------------------
Senior Manager (Euro) [**]
-------------------------------------------------------
These hourly rates cover all costs incurred in connection with the
performance of the order, except for specific disbursements (e.g., usage of
the provided Development Environment (as defined in Section 8.1 below),
travel in accordance with the DBS standard travel policies). DBS classifies
personnel according to its reasonable discretion. In the case of
Freelancers and subcontractor employees, the classification is based on a
comparison of the individual's position and duties to employees of DBS. DBS
has informed the Ceres' Program Manager about the standard travel policies.
If these policies change and the change would result in extra costs to
Ceres, the extra costs will not be charged unless Ceres has been notified
of such change. Travel time will be charged at one half of the above hourly
rates, and then only for (i) the time in which the individual could have
been working if the individual was not traveling, or (ii) the loss of the
individual's normal time off on weekends or holidays, up to a maximum of 8
hours for any such day.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-3-
3. Network Implementation and Operation
3.1 Description of Work
The topology of the Chicago Backend and the Network, as provided under this
Agreement, is designed to make an equal and high-quality access to the
System possible for all connected Participants and to maintain a high
performance. A "Participant" (in the Agreement also referred to as "User")
is an enterprise or individual who has applied for admission to trade on
the CBOT Electronic Market or who has been admitted to trade on the CBOT
Electronic Market.
[Illustration]
Illustration 1: Network Architecture - Premium
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-4-
[Illustration]
Illustration 2: Network Architecture - Combined/iAccess
The Participants will be connected according to a two-phase concept (see
illustration 1 and 2):
. Connection of the Participants to the Chicago Backend and the Network:
A Participant is connected to an Access Point via one or two
connections ("Participant Installation"). The two connections will be
implemented, wherever technically possible and reasonable, using
different telecommunication carriers with physically separate
connections or diverse routing from a single carrier. In case of the
Combined Access the Participant Installation is established via a
leased line and the Internet. iAccess is established through the
Internet only.
A Participant Installation can consist of one or more physically
separate offices connected to each other by a LAN or a WAN ("Sites").
A Participant Installation may be used by one or several Participants.
In the case of several Participants using a single Participant
Installation, the installation is a Multi Member Integrated Server
System ("MMISS").
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-5-
. Connection of the Access Points to the backend:
The local connections of the Participant Installations within a
geographic area are gathered together at "Access Points" consisting of
two communications servers and four routers (maintained in a redundant
structure of one server and two routers each at two physically
separate locations). An Access Point is a logical unit having a
maximum capacity of [**]. Accordingly, up to a number of [**] can be
connected to one Access Point. This limitation applies only to
Premium, Combined and iAccess. All Internet Connections are currently
routed to the Frankfurt Internet Access Point. The connection of the
Access Points to the backend is made by means of two separate
connections. The price for establishing a new Access Point will be
agreed in the corresponding Change Request.
3.2 Remuneration
The following prices are based on the number of Participant Installations
connected to the Access Points; a MMISS constitutes a single Participant
Installation under this Section 3.2. The amounts stated are for each
calendar month. With respect to the individual Participant Installations,
the following prices apply:
---------------------------------------------------------------------------------------
Access Point Participant Price per Price per Price per
Location (general Location Access Premium Combined
urban area) Point Participant Participant
Installation Installation
([**] leased
lines)
---------------------------------------------------------------------------------------
Chicago Chicago (Euro) [**] (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Chicago Canadian, TX (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Chicago Jacksonville (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Chicago Toronto (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Chicago Tokyo (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
London London (Euro) [**] (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-6-
---------------------------------------------------------------------------------------
Access Point Participant Price per Price per Price per
Location (general Location Access Premium Combined
urban area) Point Participant Participant
Installation Installation
([**] leased
lines)
---------------------------------------------------------------------------------------
London Dublin (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Frankfurt Frankfurt (Euro) [**] (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Paris Paris (Euro) [**] (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
New York New York (Euro) [**] (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
New York Greenwich (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
New York King of Prussia (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
New York Whippany (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Tokyo Tokyo (Euro) [**] (Euro) [**] (Euro) [**]
---------------------------------------------------------------------------------------
Internet AP Frankfurt (Euro) [**]
---------------------------------------------------------------------------------------
The one-off cost for a Premium Participant Installation is (Euro) [**], the
one-off cost for a Combined Participant Installation is (Euro) [**].
The remuneration for an iAccess Participant Installation is (Euro) [**] for
each calendar month. The one-off cost for an iAccess Participant
Installation is (Euro) [**].
The one-off fee applies for the initial installation of the Participant
Installation at the Participant's member site as well as for any location
changes of an installed Participant Installation. In case a Participant
Installation order is cancelled after DBS has ordered the lines, both the
one-off installation fee and the fees for the next three full calendar
months will be charged.
A Participant can have more than two connections between a Participant
Installation and an Access Point. [**] will be charged for each additional
connection. In case a
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-7-
Participant Installation consists only of [**] connection [**]% of the
above monthly and one-off charges for Participant Installations shall
apply.
The above monthly fees for Participant Installations are based on the
carrier charges for leased lines between a Participant Installation and an
Access Point located within the borders of the same city. If the
Participant Installation is located outside of the city in which the Access
Point is located, the monthly charge will be increased to cover higher
carrier costs for installing and maintaining the leased lines, if any, and
any increased DBS handling costs. DBS will agree with Ceres on the
increased costs before connecting the Participant Installations.
Access Points that are shared by Eurex and Ceres have discounted monthly
fees. The following discounts apply to the monthly fees:
----------------------------------------------------------------
Common Access Points Discount
Per Access Point
----------------------------------------------------------------
Single usage by Exchange Application [**]%
----------------------------------------------------------------
Usage by two Exchange Applications [**]%
----------------------------------------------------------------
All sharing exchanges will be informed about a shared usage of an Access
Point.
After receipt of notice canceling a Participant Installation, the monthly
fee will continue to be charged for the next three full calendar months.
Upon the cancellation of an Access Point service in accordance with the
terms of the Agreement, Ceres must pay the expenses for line costs or
leases charged to DBS by third parties until the end of the term of the
agreement with the respective supplier. DBS will also charge Ceres for the
remaining book value (as shown on DBS's books) of the fixed assets in the
Access Points if DBS cannot reasonably use the fixed assets elsewhere. If
DBS charges the remaining book value, DBS will transfer ownership of the
corresponding fixed assets to Ceres in "as is" condition immediately on
receipt of payment; Ceres is responsible for taking delivery of the fixed
assets at the Access Points.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-8-
Unless Ceres grants its prior written consent, the term of a line agreement
will not exceed 12 months, and a lease agreement for premises will not
exceed an initial fixed term of three years, provided (i) that any line
agreement made with effect from January 1, 2003 or any later date shall be
made for a period ending on December 31, 2003, and (ii) that any cost
increases resulting from such line agreements with a duration less than
twelve months shall be borne by Ceres.
4. Production
4.1 Description of Work
Operation of the "Production Environment" (as described below):
The topology of the Production Environment is designed to make an equal and
high-performance access to the Chicago Backend possible for all connected
Participants and to maintain a high performance. The security of the
operated systems is achieved by:
. software installation on the backend systems, communication servers
and other systems to be operated,
. continuous monitoring of the architecture and the application,
. technical supervision and continuous monitoring of the end-of-day
processing (including preparation and distribution of the reports
necessary for the exchange),
. continuous control of the system setup,
. redundant data protection of the operated systems,
. conclusion and administration of suitable license and maintenance
agreements.
The technical performance of the operated systems is achieved by:
. capacity and system management,
. selection and use of suitable hardware and software,
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-9-
. continuous performance analysis,
. preparation of reports and statistics.
The Production Environment consists of a redundant backend cluster which is
distributed to two locations together with subordinated data base systems
which are also constructed as disaster tolerant.
[CHART]
Illustration 3: Production Architecture
4.2 Remuneration
The remuneration for the operation of the Production Environment is (Euro)
[**] for each calendar month.
5. Simulation
5.1 Description of Work
Operation of the "Simulation Environment" (as described below):
The purpose of the Simulation Environment is to provide a test environment
for Participants and vendors. The topology of the Simulation Environment
is similar to the
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-10-
Production Environment. Its capacity is sufficient to allow all connected
Participants reasonable tests. Operation of the Simulation Environment
includes:
. software installation on the backend systems, communication
servers and other systems to be operated,
. continuous monitoring of the architecture and the application,
. technical supervision and continuous monitoring of the end-of-day
processing (including preparation and distribution of the reports
necessary for the exchange),
. continuous control of the system setup,
. redundant data protection of the operated systems,
. conclusion and administration of suitable license and maintenance
agreements.
The technical performance of the operated systems is achieved by:
. capacity and system management,
. selection and use of suitable hardware and software,
. continuous performance analysis,
. preparation of reports and statistics.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-11-
[CHART]
Illustration 4: Simulation Architecture
The Communication Server ("CS"), Access Point Network and X.25-TCP/IP
components are shared with the Production Environment.
5.2 Remuneration
The remuneration for the operation of the Simulation Environment is (Euro)
[**] for each calendar month. Each Site connected to the Simulation
Environment will be remunerated with (Euro) [**] per month.
6. Customer Service
6.1 Description of Work
Performance of the "Customer Service" (as described below):
Customer Service is the central contact for Participants who want technical
support for the Chicago Backend or the Network. Customer Service also
deals with all technical orders from Ceres and coordinates the realization
of such orders (e.g., the connection of new Participants).
Customer Service consists of:
Schedule 10.2 to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-12-
A. "Connection Services" which include:
. examining application forms from potential Participants for
completeness and plausibility,
. supporting the Participant by phone and electronic media in the
configuration, installation and operation of its frontend
installation,
. verification that the Participant Installation complies with
Eurex' regulations governing the connection of Participants to the
Chicago Backend and the Network (e.g., Implementation Regulations
Concerning Technical Equipment (Technische
Durchfuhrungsbestimmungen)),
. setting up network connections between the Participant and the
Access Point (commissioning, coordinating the dates, setup of the
required bandwidths, etc.),
. connecting the Participant to the Chicago Backend and the Network
and testing (Ping Test, FTP Test, Failover Test),
. transferring the application software to the Participants'
systems,
. technical configuration of the Participant in the backend,
. coordinating the functional setup of the Participant in the
backend with market supervision and production administration,
. moving a Participant Installation from one Access Point to another
or from one location to another location.
The connection (including a move) of a Participant Installation
requires an order from Ceres to DBS. The technical connection of a
Participant is concluded as soon as the Participant has been
completely set up in the production system and the Ping Test, the
FTP Test and the Failover Test have been successfully completed.
The
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
-13-
Participant will be disconnected as soon as Ceres notifies DBS in
writing that the Participant connection must be cancelled.
B. Technical Helpdesk (First Level Support) and Change Management
"Technical Helpdesk" includes the following services:
. solving technical problems in the everyday operation of the
Member Integrated System Server ("MISS"), the WAN-Routers and the
MISS-Router-LAN,
. support for troubleshooting of technical errors in the frontend
installation,
. solving problems with the connection between the Participant and
the Access Point,
. answering questions on technical matters,
. answering questions regarding the VALUES-API interface.
All Participants operating a frontend installation which is classified
as "supported" and which fulfills the requirements of the
Implementation Regulations Concerning Technical Equipment will be
supported.
"Change Management" includes the following services for the
"supported" Participant Installations:
. provision of additional connections and cancellation of
connections between the Participant Installation and the Access
Point,
. setup of additional MISS and cancellation of MISS,
. change of report nodes,
. setup of new routers in the Participants' premises,
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Schedule 10.2 to the New Systems Operations Agreement
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. cancellation of a Participant Installation.
6.2 Remuneration
A. Connection Services shall be remunerated for each new Participant
Installation in an amount of (Euro) [**] per connection as a one time
charge. If Participants are connected to more than one Access Point,
the connection to each Access Point constitutes a separate Participant
Installation. The move of a Participant Installation to another
location is also a new Participant Installation and will be
remunerated separately. In case a Participant Installation order is
cancelled after DBS has ordered the line, the full Connection Service
fee will be charged.
B. Technical Helpdesk and Change Management is charged at a flat fee of
(Euro) [**] per month. If the total number of Sites connected to the
Chicago Backend exceeds [**], an additional monthly fee of (Euro) [**]
for each additional Site (i.e., MISS group location) will be charged.
7. Hotfire Server
7.1 Description
DBS provides and operates the necessary infrastructure for the Hotfire
Servers. The two servers are located in Chicago. DBS provides the
ethernet interface for the connection of the Hotfire Servers to the CBOT
Electronic Market. Ceres is responsible for the physical and logical
connection from Market Operations desks to the Hotfire Servers.
The operation of the Hotfire Servers is handled by DBS from Frankfurt and
Chicago, respectively.
The maintenance of the software installed on the Hotfire Servers is subject
to the Software Maintenance Agreement.
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
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7.2 Remuneration
The remuneration for the operation of the Hotfire Servers is (Euro)[**] for
each calendar month.
8. Development Environment
8.1 Description
DBS provides and operates the infrastructure necessary for the development
and update of the Eurex Software ("Development Environment"). For the
purpose of planning the required number of software development
workstations, DBS and Ceres will establish a utilization plan by 30
September of each year for the next calendar year. The plan will identify
the number of required workstations per month for the following year. In
order to save costs, the frontend systems are also used for other
development.
A. Development Frontend Hardware and Software Infrastructure:
. provision of desktop development and office communication
frontend hardware and software (including servers),
. setup of the workstations,
. removal management,
. creation of specific software images,
. installation of new server software releases,
. installation of new desktop software releases,
. system management of the servers,
. hardware and software support of the desktop workstations.
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 10.2 to the New Systems Operations Agreement
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B. Development Backend Hardware and Software Infrastructure:
. installation of the required software on the backend systems,
. monitoring the architecture and the application,
. permanent control of the system setups,
. conclusion and administration of the required license and
maintenance agreements.
C. Performance Test Environment:
The "Performance Test Environment" represents a scaled-down image of
the Production Environment. It serves to monitor the impact of
software modifications on performance.
D. Acceptance Test Environment:
The "Acceptance Test Environment" is provided for the acceptance of
new releases of the Eurex Software. This environment also represents
a scaled-down image of the Production Environment. The Acceptance
Test Environment is also used for other exchanges.
8.2 Remuneration
The remuneration for the use of the Development Environment is not
contained in the hourly rates for DBS' personnel and DBS' subcontractors
(working on an hourly basis and not on a fixed price basis) and will be
charged separately with (Euro) [**] per hour and person. With respect to
Ceres' personnel (including Freelancers), Ceres' subcontractors and DBS'
subcontractors working on a fixed price basis, DBS will charge (Euro) [**]
per hour and person (based on 8 hours per day) for the use of the
Development Environment.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Service Levels
This schedule covers the service levels for the CBOT Electronic Market. All
times herein refer to Chicago Time. All service levels shall apply from January
1, 2002. For the purposes only of this Schedule 11, "System" shall mean the
Chicago Backend and the Network to the extent they are used for purposes of the
CBOT Electronic Market.
1. Service Times
1.1 System
The System will be operated on all trading days of the CBOT Electronic
Market for the following hours of operation:
-------------------------------------------------------------------------
Operation Time
-------------------------------------------------------------------------
General operation (including batch runs) From Sunday 7:15 p.m.
to Friday 7:15 p.m.
-------------------------------------------------------------------------
Online operation (batch runs are, therefore, 7:15 p.m. on each
possible from 4:45 p.m. on a trading day to trading day to 4:45 p.m.
7:15 p.m. on a trading day) on the next trading day
-------------------------------------------------------------------------
Notwithstanding the foregoing chart, the System will not be available for
batch or online work from 7:00 p.m. on Friday to 7:15 p.m. on Sunday; these
times are intended for regularly scheduled maintenance.
The service for the Hotfire Servers is provided during the online operation
of the System.
1.2 Technical Helpdesk
The Technical Helpdesk is manned from Sunday 7:00 p.m. to Friday 7:00 p.m.
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pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 11 to the New Systems Operations Agreement
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2. System Availability
2.1 Calculation of Actual Availability
The actual availability of the System during the scheduled service times
set forth in Section 1.1 above will be calculated for each calendar month
according to the following formula:
AV = 100%*( E[Down Time for Each MISS] )
(1 - -------------------------- )
( #MISSs * 1,200 min * #Trading days)
---------------------------------------------------------------------
Variable Description
---------------------------------------------------------------------
AV Actual availability of the System in
percent in respective month
---------------------------------------------------------------------
Down Time for Each MISS Minutes in each calendar month for
which each MISS is not in operation
during the Service Times for online
operations
---------------------------------------------------------------------
#MISSs Total number of connected MISSs in
production in the respective month
---------------------------------------------------------------------
#Trading days Number of trading days in respective
month
---------------------------------------------------------------------
Lack of availability resulting from poor performance by the
telecommunications carriers will not be taken into account when calculating
actual availability. However, if DBS receives any indemnification from the
carriers, this will be for the account of Ceres.
Lack of availability due to data errors by parties other than DBS will not
be taken into account.
2.2 Performance Credits
If the actual availability of the System is less than [**]% in any calendar
month in 2002, DBS will pay the following performance credits to Ceres:
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Schedule 11 to the New Systems Operations Agreement
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------------------------------------------------------------------
Actual Availability Performance Credit for each [**]%
in a Calendar Month (or portion thereof)
------------------------------------------------------------------
Between [**]% and [**]% (Euro) [**]
------------------------------------------------------------------
Between [**]% and [**]% (Euro) [**]
------------------------------------------------------------------
Due to the reduction of the Non Trading Window (as described in Change
Request 42 to the Systems Operations Agreement) the following shall apply:
System down times resulting in late start of trading caused by
. delayed start of Batch processing (actual Batch start after 4:45
p.m. CST),
. errors/unavailability of downstream systems/interfaces (non-DBS
serviced systems/interfaces; e.g., OIA, Prices, BOTCC ), or
. any other errors/issues which result in a total delay of opening of
trading less than 75 minutes,
will not be taken into account when calculating the actual availability
figures per calendar month.
2.3 Early Termination Right
If the actual availability is less than [**]% in any two months during any
four month period, or if the actual availability is less than [**]% in any
single month, Ceres can terminate the Agreement by giving written notice of
termination to DBS within two weeks after the conclusion of the Problem
procedures concerning the lack of availability. The notice will take
effect at the end of the first full calendar month following the month in
which the notice is received. Such notice will constitute termination for
cause pursuant to Section 17.2 of the Agreement.
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 11 to the New Systems Operations Agreement
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3. Technical Helpdesk Availability
3.1 Calculation of Actual Technical Helpdesk Availability
The actual availability of the Technical Helpdesk during the scheduled
service times set forth in Section 1.2 will be calculated for each calendar
month according to the following formula:
( #Successful Calls )
HA = 100%*(----------------------- )
( #Total Number of Calls )
-----------------------------------------------------------------------
Variable Description
-----------------------------------------------------------------------
HA Actual availability of the Technical
Helpdesk in percent in respective month
-----------------------------------------------------------------------
#Successful Calls Number of calls taken by the Technical
Helpdesk agents in the respective month
-----------------------------------------------------------------------
#Total Number of Calls Total Number of calls to the Technical
Helpdesk in the respective month
-----------------------------------------------------------------------
The number of Successful Calls and the Total Number of Calls will be
measured by DBS' telephone equipment. A Successful Call means that the
person requesting service is
. connected directly with an English speaking staff member of the
Technical Helpdesk, or
. connected with an automated voice message in English which provides
sufficient information (e.g., the type, extent and probable duration
of a general and broad System failure), and will be handed to the
next free agent, or
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Schedule 11 to the New Systems Operations Agreement
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. conducted into a waiting loop and is informed by an automated voice
message in English that currently all agents are busy and the caller
will be connected as soon as possible with the next available agent.
If the person requesting service hangs up more than one minute after the
automated voice message has concluded, the attempted contact will be
registered in the Total Number of Calls but not in the number of Successful
Calls; if the person requesting service hangs up before the minute has
passed, the call will not be registered in the Total Number of Calls. If
the person requesting service is connected to an automated voice message
which provides sufficient information (e.g., the type, extent and probable
duration of a general and broad System failure) with a duration of at least
one minute, the call will also be registered in the Total Number of Calls
even if the call was not connected to a staff member.
Technical Helpdesk will answer e-mail and fax requests within 4 days during
standard business operations. The requester will receive an acknowledgement
of receipt without undue delay.
The actual availability of the Technical Helpdesk in any calendar month
shall not be less than [**]%.
3.2 Calculation of Actual Technical Helpdesk Quality
The actual quality of the Technical Helpdesk during the scheduled service
times set forth in Section 1.2 will be calculated for each calendar month
according to the following formula:
( #Tickets Closed at Call )
HQ = 100%*( ------------------------ )
( #Total Number of Tickets )
Schedules to the New Systems Operations Agreement
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 11 to the New Systems Operations Agreement
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-----------------------------------------------------------------------
Variable Description
-----------------------------------------------------------------------
HQ Actual quality of the Technical Helpdesk
in percent in respective month
-----------------------------------------------------------------------
#Tickets closed at Call Number of tickets that are closed by
answering requests directly during call
taken by the Technical Helpdesk agents
in the respective month
-----------------------------------------------------------------------
#Total Number of Tickets Total Number of Tickets to the Technical
Helpdesk in the respective month
-----------------------------------------------------------------------
The number of Tickets closed at Call and the Total Number of Tickets will
be measured by DBS. The actual quality of the Technical Helpdesk Quality in
any calendar month shall not be less than [**]%.
4. System Performance
4.1 Performance Criteria
DBS will provide a performance system for trading products electronically.
The System's performance will be measured as the average host roundtrip
time per 22h-trading day and the time needed to process [**]% of all
transactions. The host roundtrip time is measured as the time a
transaction needs for processing and transmission from entering the backend
until leaving the backend.
The current performance criteria are set to [**] seconds for the average
host roundtrip time per 22-hour trading day and [**] seconds for [**]% of
all transactions.
5. Delivery Times
5.1 New Access Points Services
For establishing an additional Access Point service consisting of two
communications servers and four routers (maintained in a redundant
structure of one server and two routers each at two physically separate
locations) within the same premises as an existing Access
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 11 to the New Systems Operations Agreement
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Point, the maximum delivery time is [**]. Delivery times for additional
Access Points in new premises should be agreed in the corresponding Change
Requests, although this may not always be possible due to circumstances at
the location (e.g., availability of leased space, local equipment
suppliers' delivery times, availability of local subcontractors). If an
agreed delivery time for an Access Point is exceeded, DBS will pay to Ceres
a performance credit of (Euro) [**] for each commenced week until delivery
is completed up to a total of (Euro) [**].
5.2 New Participant Installations
Delivery times for Participant Installations (as defined in Section 3.1 of
Schedule 10.2 to the Agreement) cannot be guaranteed. However, DBS will
send out quote requests to the telecom provider(s) within 8 business days
after receipt of the complete and correct `Network Line Order' form. If a
request is not necessary, a line order is placed within 8 business days
after receipt of the complete and correct `Network Line Order' form. These
response times will only apply if sufficient capacity at the Access Point
site is available to connect the new Participant Installation. Incomplete
`Network Line Order' forms will be returned to Ceres within 3 business
days. Multimarket orders must be confirmed in writing by the Eurex
Entities in order to be accepted as complete and correct.
6. Simulation Environment
The Simulation Environment (as described in Section 5.1 of Schedule 10.2 to
the Agreement) will be operated unattended on all trading days of the CBOT
Electronic Market for the following hours of operation:
---------------------------------------------------------------
Operation Time
---------------------------------------------------------------
Online operation (batch runs are, 9:00 a.m. to 3:00 a.m.
therefore, only possible outside on the next trading day
this time) for each trading day
---------------------------------------------------------------
The Simulation Environment is available for approximately [**] per year due
to release introductions. Usually [**] per week with three batches are
supported. The simulation
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pursuant to a request for confidential treatment.
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Schedule 11 to the New Systems Operations Agreement
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will only be closed for batch runs. As the Simulation Environment is
operated by unattended operations, any issues will only be fixed during the
next trading day.
A Permanent Simulation Schedule (approximately for a period of 1 or 2
month) will be developed by CBOT's Market Operations together with DBS.
Notwithstanding the foregoing general schedule, the Simulation Environment
may not be available for batch or online work from 3:00 a.m. on Saturday to
9:00 a.m. on Monday; these times are intended for regularly scheduled
maintenance. Any unavailability will be included in the Permanent
Simulation Schedule.
Prior to a release introduction a dedicated Release Simulation Schedule
will be developed by the respective project. During this phase the
operation may differ from the standard operations.
7. General Assumptions
All service levels are based on the following volume and transaction
assumptions:
. no market makers/quotes, i.e. no massive use of mass quote
interface;
. no unlimited feed by electronic order routing systems;
. no batch processed order routing systems; only continuously loaded
order routing systems;
. [**] Members at maximum;
. [**] Futures Products at maximum;
. [**] Options Products at maximum;
. [**] Series for Option Products at maximum;
. [**] Orders/sec (peak) in the most liquid futures product at
maximum;
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 11 to the New Systems Operations Agreement
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. [**] Orders/sec (peak) in all futures product at maximum;
. [**] Orders and single quotes/sec (peak) in the most liquid
options product at maximum;
. [**] Orders and single quotes/sec (peak) in all options product at
maximum;
. [**] Full-trades/sec (peak) in the most liquid product at maximum;
. [**] Full-trades/sec (peak) in all products at maximum;
. [**] Full-trades/sec (average) in the most liquid product at
maximum;
. [**] Full-trade/sec (average) in all products at maximum;
. [**] Orders/22h-trading day at maximum;
. [**] Orders/22h-trading day in the most liquid futures product at
maximum;
. [**] Full-trades/22h-trading day at maximum;
. use of FIFO Matching Algorithm.
Only regular procedure trading days will be taken into account (e.g.,
trading days with market supervision or non system interface induced
problems will not be taken into account).
DBS will monitor whether the operation of the System is within the above volumes
and transaction assumptions. DBS will report monthly to Ceres and the Eurex
Entities about the monitored System information. If the volumes and transaction
assumptions are exceeded in any month and if this causes non-compliance with a
service level, DBS will not be liable for any payments under this Schedule 11
relating to the non-compliance. However, DBS will propose
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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Schedule 11 to the New Systems Operations Agreement
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measures to accommodate increased volumes and changes in the transaction
assumptions in order to achieve the guaranteed service levels.
Schedules to the New Systems Operations Agreement
Final
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.