Exhibit 10.31
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Software Maintenance Agreement
This Software Maintenance 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 Electronic Chicago Board of Trade,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America
(hereinafter, "Ceres")
and
1. Deutsche Borse AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "DBAG")
2. SWX Swiss Exchange, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "SWX")
3. Eurex Zurich AG, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "Eurex Zurich")
4. Eurex Frankfurt AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "Eurex Frankfurt")
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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 DBAG and SWX.
B. CBOT offers certain derivative products for trading on that certain
electronic market currently 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"). The CBOT Electronic Market is connected to
a dedicated wide-area communications network provided by Deutsche Borse
Systems AG ("DBS") (the "Network") that can be accessed through certain
Access Points. To date, DBS, a wholly-owned subsidiary of DBAG, has
provided to the CBOT/Eurex Alliance, L.L.C. for Ceres and CBOT, and to the
Eurex Entities, DBAG and SWX, services related to the development and the
application maintenance of the Eurex Software on the basis of a Master
Software Development Agreement dated July 20, 2000 (the "Master Software
Development Agreement"). The parties to the Master Software Development
Agreement have decided to terminate the Master Software Development
Agreement by way of a separate Reorganization Agreement dated an even date
herewith (the "Reorganization Agreement"). The Reorganization Agreement
also provides for termination of the Software License Agreement dated
October 1, 1999 between DBAG and SWX (DBAG and SWX collectively referred to
as the "Ownership Parties"), CBOT and Ceres which has to date governed
CBOT's and Ceres' right to use the Eurex Software (the "Software License
Agreement").
C. Following termination of the Software License Agreement, Ceres' and CBOT's
right to use the Eurex Software are governed by a Non-exclusive Software
License Agreement between the Ownership Parties, CBOT and Ceres dated an
even date herewith (the "Non-exclusive Software License Agreement"). In
addition, Ceres
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and CBOT desire that DBAG provide to Ceres certain maintenance services
relating to the Licensed Programs. DBAG is prepared to provide Ceres with
such services 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:
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 DBAG, on the other hand, with regard to
certain maintenance and development services to be provided by DBAG for the
purpose of the operation of the CBOT Electronic Market as set forth in
Section 4.1 (the "Maintenance Services"). The Eurex Entities and SWX shall
neither be responsible nor be liable under this Agreement in any way for
the provision of the Maintenance Services or for any failure of DBAG in
performing the Maintenance Services. CBOT and Ceres shall neither be
responsible nor be liable under this Agreement in any way for the provision
of services to DBAG, SWX or the Eurex Entities, or for any act or omission
of DBAG, SWX or the Eurex Entities.
2.2 Other Agreements. Ceres' right to use certain parts of the Eurex Software
is governed by the Non-exclusive Software License Agreement. The
installation and implementation of subsequent releases of the Eurex
Software in the CBOT Electronic Market production environment are governed
by the New Systems Operations Agreement dated an even date herewith between
DBS, the Eurex Entities, CBOT and Ceres (the "New Systems Operations
Agreement").
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3. Proprietary Rights
3.1 Ownership. The Ownership Parties are and shall remain the exclusive owners
of the Eurex Software. CBOT and Ceres shall have no other right, title or
interest in the Eurex Software other than as set forth in the Non-exclusive
Software License Agreement. The Ownership Parties shall have and retain the
exclusive right, title and interest in any future updates, releases or
versions of, or relating to, the Eurex Software. CBOT's and Ceres' right to
use such updates, releases and versions shall be governed exclusively by
the Non-exclusive Software License Agreement. The provisions of this
Section 3.1 also apply with regard to any development work performed upon
specific request, and paid for, by Ceres or CBOT.
4. Scope of Maintenance Services
4.1 Engagement. Ceres hereby engages DBAG to provide the following services:
4.1.1 Application maintenance in which DBAG will maintain the Licensed
Programs as set forth in Schedule 4.1.1.
4.1.2 Software development services regarding the Licensed Programs may be
provided by DBAG to Ceres, upon specific request by Ceres. Any such
request for the development of software is subject to a binding
Change Request which the parties may agree upon in the outcome of the
Change Request procedure set forth in Section 4.4.
4.2 Priority. If any provision in Schedule 4.1.1 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 4.1.1 or a
Change Request contradicts a provision in another Change Request, the most
recent provision will have priority.
4.3 Deliverables, Services, Tasks. Schedule 4.1.1 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
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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, 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 DBAG may request a change in Maintenance Services
at any time ("Change Request"). The Change Requests listed in Schedule 4.4
have been agreed under the Master Software Development Agreement by the
parties to such agreement and shall be deemed Change Requests pursuant to
this Agreement.
4.4.1 A Change Request will be in writing and will follow a format to be
provided by DBAG. 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 Maintenance Services or work to
be performed by DBS within the scope of the New Systems
Operations Agreement,
. impact on service levels established under the New Systems
Operations 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
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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 DBAG to
expend more than one man-day in order to complete the information,
DBAG can charge for the work on a "time-and-materials" basis if DBAG
has informed Ceres in advance that it intends to charge for such
efforts. DBAG will not charge if one man-day or less is required to
complete the information.
4.4.3 The parties recognize that there may be various solutions to each
Change Request. DBAG 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, DBAG 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, DBAG
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 DBAG for such work on a time-and-
materials basis, has been signed by Ceres. The obligation of DBAG to
perform work under such a Change Request is subject to the condition
precedent that DBAG 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 DBAG or Ceres shall be communicated to
the designated recipient of the Change Request through the Eurex
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Entities. The Eurex Entities shall without undue delay investigate
implications of the proposed Change Request on the Eurex Operations
and on the compatibility of the software and the systems used for
the operation of each of the Eurex Exchanges and the CBOT Electronic
Market. 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 DBAG. DBAG, the Eurex Entities and Ceres will
evaluate Change Requests without undue delay. Except as provided in
Sections 4.4.2 and 5.1, 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.
4.4.6 Under no circumstances shall DBAG 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 In the event DBAG or the Eurex Entities unreasonably decline
acceptance of a Change Request regarding the Licensed Programs which
is necessary in order to adhere to legal or regulatory requirements
(other than with respect to the Texas Case regarding which Section
14.1.5 shall apply), Ceres may ask a third party to make the
necessary modifications to the Eurex Software. In such case, (i) the
Eurex Entities and DBS have to provide, subject to appropriate
confidentiality undertakings, the relevant source code and the right
to modify it, each as necessary, to such third party, and (ii) the
implementation of the modifications made by the third party is
subject to the approval by DBS and the Eurex Entities. In the event
such approval is unreasonably declined by the Eurex Entities and/or
DBS, Ceres may declare termination of this Agreement. In case the
approval is given by DBS and the Eurex Entities, the modifications
made
Software Maintenance Agreement - Final
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by the third party may be used by Ceres and CBOT throughout the term
of this Agreement.
4.5 System Investigation Request. Sections 4.4.4 and 4.4.6 shall apply with
regard to any request for work under this Agreement that does not require a
Change Request (a "System Investigation Request"). DBAG shall not perform
any work under a System Investigation Request prior to the written approval
of such System Investigation Request by the Eurex Entities. The System
Investigation Requests listed in Schedule 4.4 have been agreed under the
Master Software Development Agreement by the parties to such agreement and
shall be deemed System Investigation Requests pursuant to this Agreement.
5. Co-operation, Communication, Subcontracting
5.1 Critical Instructions. If Ceres issues an instruction to DBAG, the
instruction is invalid until the Eurex Entities confirm the instruction. As
a matter of exception, if Ceres issues a written instruction to DBAG which
states that immediate compliance with the instruction is required by a
regulatory agency having authority over the CBOT Electronic Market, DBAG
shall immediately (i) commence work in accordance with the instruction, and
(ii) forward a copy of the instruction to the Eurex Entities. Ceres will
pay DBAG for all work under such an instruction on a time-and-materials
basis. If DBAG reasonably believes that implementation of such an
instruction is contrary to other work to be performed by DBAG under this
Agreement or by DBS under the New Systems Operations Agreement, or the
operation of any of Eurex Operations, DBAG will immediately notify Ceres
and the Eurex Entities accordingly, and DBAG 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. DBAG will not be responsible for delays in work under
this Agreement or for budget overruns which are caused by acts or omissions
by Ceres. DBAG 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.
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5.3 Co-operation. Ceres will provide the resources identified in Schedule
4.1.1 and each applicable Change Request and perform such other Tasks as
may be set forth in Schedule 4.1.1 and each Change Request. Ceres shall
provide DBAG and its subcontractors with all reasonable co-operation and
assistance in the performance of the Maintenance Services, in each case
including:
5.3.1 Ceres will make all decisions reasonably requested of it by DBAG in
a timely manner; such decisions will be made at the latest within
one week after receiving a written request from DBAG for the
decision; provided that such one week period does not commence to
run if Ceres still requires reasonable information from DBAG 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 the
Eurex Entities or DBAG or its subcontractors 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 Maintenance Services within
the scheduled time frame at the reasonable request of DBAG or its
subcontractors. The appropriate equipment in the Facilities does not
include components of the system which are being provided by DBAG.
5.3.4 As DBAG or its subcontractors may reasonably request assistance,
Ceres will make personnel resources available at locations where
work within the scope of the Maintenance Services is being conducted
in order to provide such assistance in a timely manner.
5.3.5 Ceres will provide DBAG and its subcontractors with access to the
Facilities where equipment required for the performance of the
Maintenance 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.
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5.3.6 DBAG will provide reasonable assistance to Ceres and its employees
and subcontractors so that they can perform their Tasks and other
work relating to the Maintenance Services.
5.4 Program Managers. DBAG 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
Maintenance Services, provided, however, that the Program Managers are not
entitled to make any decision without 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
DBAG 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 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 Maintenance
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
Officer of DBAG's Management Board responsible for DBAG's interest in the
Eurex Operations and the Chief Executive Officer of the Eurex Entities. The
purpose of
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the Escalation Committee is to discuss Problems which are not resolved by
the Program Managers.
5.7 Subcontractors. DBAG may engage subcontractors for the performance of the
Maintenance Services without CBOT's or Ceres' consent. Prior to engaging
any subcontractor other than DBS or a subcontractor who is a natural person
(such natural person a "Freelancer"), DBAG shall inform Ceres and the Eurex
Entities about the intended subcontracting. Subject to Section 4.4.7, any
engagement of a subcontractor that is not a member of the Eurex Group by
Ceres to provide Maintenance Services shall require prior written approval
by DBAG 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.
6. Legal and Regulatory Environment
6.1 Compliance. DBAG will perform the Maintenance Services in compliance with
legal and regulatory requirements, if any, for the operation of the CBOT
Electronic Market in effect on the Effective Date. Ceres is responsible for
timely informing DBAG about these requirements and their impact on the
Maintenance Services. DBAG and each of the Eurex Entities will monitor the
compliance of their respective employees and subcontractors assigned to
provide Maintenance Services 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 Maintenance 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 DBAG without undue delay about any
changes required in the
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Maintenance Services in order to comply with changes in such requirements
and standards.
6.4 Regulatory Audits. At the request of CBOT, DBAG will grant reasonable
access to its facilities, records and personnel to regulatory authorities
for the purpose of auditing the CBOT Electronic Market.
7. Development Environment
7.1 Location. DBAG will perform most of the work falling within the scope of
the Maintenance Services in its own facilities in Frankfurt am Main, and
DBAG will own, either directly or indirectly, the development environment
in Frankfurt am Main.
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 Maintenance 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
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the notifying party) under the following headings to reasonably evaluate
the Problem:
. description of the Problem including a designation of those parts
of the Maintenance 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.
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
DBAG, Ceres must continue to make payments on DBAG's invoices relating to
the Maintenance 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. DBAG 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, DBAG can suspend
its performance only for the work for which
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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,
DBAG can only suspend performance of its work under that Change Request.
Under no circumstances will DBAG 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.
9. Quality Control
9.1 Deliverables Sign-Off. DBAG will submit Deliverables to Ceres for "Sign-
Off" using a Sign-Off Form (in a form to be provided by DBAG). Sign-Off on
a Deliverable does not constitute acceptance or part acceptance of such
Deliverable. The party receiving a Deliverable will sign and return the
Sign-Off Form or a Deficiency Report (in a form to be provided by DBAG),
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. DBAG 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 DBAG fails to correct a Deviation listed in a
Deficiency Report on the first try, DBAG will not be entitled to charge for
further work required to correct the Deviation. Notwithstanding the
foregoing, DBAG will not
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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 DBAG fail to cure a Deviation within a reasonable time,
Ceres may subcontract the work to a third party, and DBAG will return any
remuneration already received for the Deliverable to the extent that the
DBAG work cannot reasonably be used. DBAG will co-operate with the new
subcontractor. The liability of DBAG to make payments under this Section
9.2 is limited to the amount which DBAG 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, DBAG will notify Ceres accordingly,
and Ceres can then initiate the Change Request procedure. If Ceres and DBAG
disagree about the existence of a Deviation and the disagreement is not
resolved by the Program Managers, either DBAG or Ceres can initiate the
Problem Report procedure.
9.4 Deliverables Acceptance. DBAG will notify Ceres, with a copy to the Eurex
Entities, that a Deliverable due under this Agreement or any applicable
Change Request is ready for Acceptance after DBAG has successfully
completed testing, unless otherwise agreed. Ceres will have the right to
test (in accordance with the applicable Test Procedures) all of the
Deliverables, and in combination with any other systems, software or
hardware with which the Deliverables are intended to be used. In accordance
with Sections 9.4.1 through 9.4.3, Ceres will either sign an acceptance
form in a form agreed to by Ceres and DBAG (the "Acceptance Form") or a
Deficiency Report, in each case with a copy to be provided to the Eurex
Entities.
9.4.1 When Ceres submits a Deficiency Report in connection with the
Acceptance of a Deliverable, in addition to the detailed description
of any Deviation, Ceres will classify the Deviation as follows:
Class 1: The Deviation would prevent the Deliverable as a whole
from operating or would have such an impact on the
operation of the Deliverable that its use in production
would not be commercially viable.
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Class 2: The Deviation would have a materially detrimental impact
on the operation of the Deliverable as a whole, although
the Deliverable could still be used in production in a
commercially viable manner, if necessary with reasonable
work-around efforts. If a combination of Class 2 and Class
3 Deviations would prevent the Deliverable as a whole from
being used in a commercially viable manner, the
combination of Class 2 and Class 3 Deviations constitutes
a Class 1 Deviation.
Class 3: These are any other Deviations. If a combination of Class
3 Deviations would prevent the Deliverable as a whole from
operating or would have such an impact on the operation
that its use in production would not be commercially
viable, the combination of Class 3 Deviations constitutes
a Class 1 Deviation. If a combination of Class 3
Deviations would have a materially detrimental impact on
the operation of the Deliverable as a whole, although it
could still be used in production in a commercially viable
manner, if necessary with work-around efforts, the
combination of Class 3 Deviations constitutes a Class 2
Deviation.
9.4.2 If Ceres classifies a Deviation as a Class 1 Deviation during the
Test Procedure, Ceres can cancel or interrupt the Test Procedure and
require DBAG to reexamine the Deliverable and correct the Deviation
and any other Deviations which were already identified as soon as
possible using its best efforts prior to resubmitting the
Deliverable for the Test Procedure. If Ceres classifies a Deviation
as a Class 2 Deviation during the Test Procedure, the Test Procedure
will continue to the extent reasonably feasible, and DBAG will
correct the Deviation and any other Deviations which were already
identified as soon as possible using its best efforts. Ceres must
only accept the Deliverable as a whole after conclusion of the Test
Procedures when all Class 1 Deviations have been corrected.
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9.4.3 After conclusion of the Test Procedure, Ceres is not entitled to
refuse Acceptance of the Deliverable due to Class 2 or Class 3
Deviations. However, DBAG must correct the Class 2 and Class 3
Deviations without undue delay after they have been reported.
Failure to submit the Acceptance Form or a Deficiency Report within two
weeks after the Test Procedures have been concluded constitutes Acceptance
of the Deliverable. If the parties disagree about the classification of a
Deviation and the disagreement is not resolved by the respective Program
Managers, either party can initiate the Problem Report procedure.
9.5 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 DBAG (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 DBAG (with a copy to the Eurex Entities) within two weeks of
becoming aware thereof, Ceres cannot assert any claims or other rights
against DBAG resulting from the deficiency in the Service prior to
notification, but Ceres can require DBAG to correct the deficiency in the
Service without undue delay. DBAG must correct the deficiency at its
expense.
10. Service Fees, Payment
10.1 Service Fee. Schedules 4.1.1 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 DBAG. Ceres will only
reimburse DBAG 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
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basis, DBAG will charge on a time-and-materials basis according to the DBAG
catalogue of prices attached as Schedule 10.2 (the "DBAG Catalogue of
Prices").
10.3 Invoices. DBAG 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 DBAG's 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, DBAG will reimburse Ceres for the cost of the audit.
10.4 VAT, Tax Laws. The parties acknowledge that the Maintenance Services
provided by DBAG are under current German law not subject to Value Added
Tax. Accordingly, the Service Fees invoiced by DBAG to Ceres are net of any
Value Added Tax. In case all or part of the Maintenance Services become
subject to Value Added Tax under the then current law and DBAG is required
to pay and has paid such tax, Ceres shall reimburse DBAG 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 DBAG under this Agreement, Ceres can require DBAG 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 Ceres and DBAG 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. DBAG 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, DBAG shall confirm in writing that such
payment is not subject to withholding taxes or deliver to such party two
original copies of Internal
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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. DBAG hereby agrees, from time to time after the initial delivery
by DBAG 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 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 DBAG 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 DBAG 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. Warranties
11.1 Exclusion. Except as set forth in Section 11.2, all claims under warranty
(Gewahrleistungsanspruche) against DBAG for any defects in a Deliverable
included or used in the Licensed Programs that arise after Ceres'
Acceptance of a
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Deliverable are excluded. However, if DBAG has a claim under warranty or
for any other reason against any subcontractor or other third party, in
each case other than DBS, related to any Deliverable, DBAG will inform
Ceres about the claim and, at the request of Ceres, assign the claim to
Ceres 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 by Ceres or CBOT; and (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 DBAG has corresponding warranties from
the third party.
12. Limitation of Liability
12.1 Conduct. DBAG, SWX 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 DBAG's, SWX's 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 and CBOT will be liable (including
consequential damages) to DBAG, SWX 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 DBAG, SWX or the Eurex Entities. If
DBAG, 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
Master Software Development Agreement.
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12.2 Breach of Contract. This Agreement (including Schedules and Change
Requests) may contain provisions on liability which apply exclusively in
specified circumstances; 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 DBAG, SWX 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,
including a breach of the warranties issued pursuant to Section 11.2, and
the New Systems Operations Agreement is limited to (Euro) [**] per calendar
year, whereby, for the purposes only of this provision, a liability of DBS
under the New Systems Operations Agreement shall be deemed a liability of
DBAG. This limit also applies to claims arising under provisions on
liability which apply exclusively in specific circumstances. This Section
12.3 does not apply to claims under Section 14.
12.4 Claims Exceeding Limitation of Liability. If DBAG, 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. SWX and the Eurex Entities shall each be severally liable
to Ceres and CBOT solely for damages arising from their own intentional
misconduct or gross negligence, respectively. Under no circumstances shall
SWX and the Eurex
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Entities be liable to Ceres or CBOT jointly and severally
(gesamtschuldnerisch) with DBAG (i) for the performance of, or DBAG's or
its subcontractors' failure to perform, any of DBAG's obligations pursuant
to this Agreement, or (ii) any conduct (Section 12.1) of, or the breach of
contract (Section 12.2) by, or warranties or covenants of, DBAG 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 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. DBAG will only assign personnel to the Maintenance
Services who are suitably qualified for the performance of DBAG's
obligations under this Agreement. Ceres will only assign personnel to the
Maintenance 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 DBAG in performing
the work under the Schedules or the Change Requests.
13.2 Transfer. DBAG and Ceres, respectively, can require at any time that an
individual assigned to the Maintenance 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
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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, DBAG 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 DBAG) related to or
arising from all claims asserted by third parties against Ceres or
CBOT caused by the performance of the Maintenance Services in which
the third parties allege violations of intellectual property rights
or of similar proprietary rights (e.g., under laws against unfair
competition).
14.1.2 Ceres and CBOT will inform DBAG without undue delay when such claim
is asserted against it. DBAG 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
their own expense, legal counsel of their 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 DBAG fully complies
with its obligations under the above provisions, unless such
settlement includes a release of DBAG 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
a Deliverable, or if such a prohibition is probable in its
reasonable estimation, DBAG, at its own cost, will use reasonable
efforts to obtain the right for Ceres to continue to use such
Deliverable on commercially reasonable terms or use reasonable
efforts to modify such Deliverable in such a manner that the
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violation of the intellectual property right or similar proprietary
right no longer exists. This Agreement will then apply to the new
or modified Deliverable.
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 Maintenance 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, DBAG and Ceres will use good faith
efforts to modify, if applicable, the Maintenance Services so that
the Texas Case does not affect the performance of the Maintenance
Services. Ceres shall pay for any such efforts of DBAG 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.
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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) 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)
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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 providing the Maintenance Services to Ceres and CBOT
under this 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 for any purpose other than to
provide services to CBOT or Ceres under this Agreement or the New Systems
Operations 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 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 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
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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
Maintenance Services. The parties will cooperate in drafting press releases
concerning the Maintenance 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.
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 begins as of the Effective Date, and 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 DBAG and Ceres may terminate this Agreement, if the other
party after receiving a written reminder (Mahnung) setting a
reasonable
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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 DBAG 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 or 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 (to be calculated
on the basis of the average payment of Service Fees until
declaration of termination) throughout the entire regular term of
the Agreement (i.e. through December 31, 2003) are immediately due
and payable, and (ii) DBAG will ensure termination assistance for a
period no longer than two months from the declaration of
termination by DBAG, 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 DBAG shall continue to perform the
Maintenance Services, and Ceres shall have the obligation to pay
for the Maintenance 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, DBAG must
decide within 30 days
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of receipt of such notice whether or not to exercise the right to
terminate pursuant to this section.
17.2.4 DBAG 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 (to be calculated on the basis of the average payment of
Service Fees until declaration of termination) throughout the
entire regular term of the Agreement (i.e. through December 31,
2003) are immediately due and payable, and (ii) DBAG 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 DBAG, 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 systems 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 written notice of Ceres, DBAG 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.
17.3 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 New
Systems Operations Agreement terminates as of the date on which such
agreement terminates. DBAG will be entitled to payment on a time-and-
materials basis for
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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 New Systems
Operations 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, 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 License Agreement, the New Systems Operations
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
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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 New Systems
Operations Agreement to the assignee, or (iii) in case of Ceres being the
assigning party, CBOT assumes a 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 and SWX 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.
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
Software Maintenance Agreement - Final
-32-
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 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 New Systems Operations 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 DBAG
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
Software Maintenance Agreement - Final
-33-
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 DBAG 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.
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 DBAG that are available to
CBOT.
18.10.4 DBAG 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: 07/10/02 Date: 07/10/02
Software Maintenance Agreement - Final
-34-
Deutsche Borse AG SWX Swiss Exchange
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Date: 07/11/02 Date: 07/11/02
------------------------------- -------------------------------
Eurex Frankfurt AG Eurex Zurich AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Date: 07/11/02 Date: 07/11/02
-------------------------------- --------------------------------
Software Maintenance Agreement - Final
Schedule 1.1 to the Software Maintenance Agreement
Glossary of Defined Terms
"Acceptance" means, with respect to a Deliverable, acceptance
of such Deliverable as set forth in Section 9.4.
"Acceptance Form" is defined Section 9.4.
"Access Points" means the "Access Points" as defined in the New
Systems Operations Agreement.
"Affiliate" means 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/Eurex Alliance, L.L.C." has the meaning as set forth in the Reorganization
Agreement.
"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.
"Class 1 Deviation" is defined in Section 9.4.1.
Schedules to the Software Maintenance Agreement
Final
Schedule 1.1 to the Software Maintenance Agreement
-2-
"Class 2 Deviation" is defined in Section 9.4.1.
"Class 3 Deviation" is defined in Section 9.4.1.
"Confidential Information" is defined in Section 15.1.
"DBAG" is defined in the initial paragraph of this
Agreement.
"DBAG Catalogue of Prices" is defined in Section 10.2.
"DBS" is defined in the Recitals, Section B.
"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 Group" means "Eurex Group" as defined in the
Reorganization 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.
Schedules to the Software Maintenance Agreement
Final
Schedule 1.1 to the Software Maintenance Agreement
-3-
"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.
"Licensed Programs" means the "Licensed Programs" as defined in the
Non-exclusive Software Licence Agreement.
"Maintenance Services" is defined in Section 2.1.
"Master Software Development is defined in the Recitals, Section B.
Agreement"
"Network" is defined in the Recitals, Section B.
"Network Restriction" means the "Network Restriction" as defined in the
Reorganization Agreement.
"New Systems Operations is defined in Section 2.2.
Agreement"
"Non-exclusive Software is defined in the Recitals, Section C.
License Agreement"
"Ownership Parties" is defined in the Recitals, Section B.
"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.
Schedules to the Software Maintenance Agreement
Final
Schedule 1.1 to the Software Maintenance Agreement
-4-
"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 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 License Agreement" is defined in the Recitals, Section B.
"SWX" is defined in the initial paragraph of this
Agreement.
"System" means the "System" as defined in the
Reorganization Agreement.
"System Investigation is defined in Section 4.5.
Request"
"Tasks" is defined in Section 4.3.
"Test Procedures" are any specific procedures set forth in the
applicable Change Requests.
"Texas Case" is defined in Section 14.1.5.
"UNCITRAL Rules" is defined in Section 18.9.
Schedules to the Software Maintenance Agreement
Final
Schedule 4.1.1 to the Software Maintenance Agreement
Application Maintenance
Nothing contained in this Schedule 4.1.1 is intended to modify Sections 4.4 and
4.5 of the Agreement.
1. Preventive and Corrective Maintenance
1.1 DBAG will perform Preventive Maintenance and Corrective Maintenance.
Preventive Maintenance is the implementation of a change in the Licensed
Programs to improve existing functionality or performance prior to a
problem in production becoming apparent. Corrective Maintenance is the
implementation of a change in the Licensed Programs to correct a problem
after it has become apparent in production.
1.2 Either DBAG or Ceres can initiate Preventive Maintenance or Corrective
Maintenance by submitting a System Investigation Request to the other party
(in each case with a copy to the Eurex Entities) in which the problem and,
to the extent reasonably feasible, the appropriate corrective measures are
described. In the case of Corrective Maintenance, the initiating party
will also classify the problem according to the following criteria:
Class 1: The problem prevents the Licensed Programs as a whole from
operating or would have such an impact on the operation that the
use in production is not commercially viable.
Class 2: The problem has a materially detrimental impact on the operation
of the Licensed Programs as a whole, although it can still be
used in production in a commercially viable manner, if necessary
with reasonable work-around efforts. If a combination of Class 2
and Class 3 problems prevents the Licensed Programs as a whole
from being used in a commercially viable manner the combination
of Class 2 and Class 3 problems constitutes a Class 1 problem.
Class 3: These are any other problems. If a combination of Class 3
problems prevents the Licensed Programs as a whole from operating
or would have such an impact on the operation that use in
production is not commercially viable, the combination of Class 3
problems constitutes a Class 1 problem. If a combination of Class
3 problems has a materially detrimental impact on the operation
of the Licensed Programs as a whole, although it can still be
used in production in a commercially viable manner, if necessary
with reasonable work-around efforts, the
Schedules to the Software Maintenance Agreement
Final
Schedule 4.1.1 to the Software Maintenance Agreement
-2-
combination of Class 3 problems constitutes a Class 2 problem.
1.3 In the case of Preventive Maintenance and Class 3 problems the Ceres
Program Manager will inform the DBAG Program Manager and the Eurex Manager
whether the changes in the Licensed Programs should be implemented
independent of any new release which is already planned or whether the
changes should be implemented beforehand in the then currently used version
of the Licensed Programs. In the case of Corrective Maintenance for Class
1 and Class 2 problems, DBAG will implement the appropriate changes in the
Licensed Programs without undue delay.
1.4 The procedures for notifying each other about maintenance (e.g., Help Desk)
shall be as set forth in the New Systems Operations Agreement. These
procedures will be refined during the course of this Agreement.
2. Implementation of Changes
2.1 On the occasion of each Service Investigation Request, DBAG will create a
System Investigation Request Report ("SIR Report") in its problem tracking
system. The SIR Report contains the description of the problem, the
solution and, if appropriate, test cases. DBAG will regularly update the
SIR Report to reflect the progress on implementing the changes. DBAG will
provide copies of the SIR Report and all updates to Ceres and the Eurex
Entities.
2.2 DBAG will make the appropriate changes in the Licensed Programs and notify
Ceres and the Eurex Entities that the changes are ready for testing in the
test environment. The parties will then jointly test the changes in the
test environment, and DBAG will accept the changes upon successful
conclusion of the tests.
2.3 After acceptance of the changes, DBAG will install them in the Production
Environment (as described in Section 4.1 of Schedule 10.2 to the New
Systems Operations Agreement) with the next release (in the case of Class 3
problems) or immediately in the case of Class 1 and Class 2 problems. In
the latter case the changes will also be included in the next release if
appropriate.
Schedules to the Software Maintenance Agreement
Final
Schedule 4.1.1 to the Software Maintenance Agreement
-3-
3. Pricing
Unless expressly agreed otherwise in writing, DBAG will invoice all work on a
time-and-materials basis up to a maximum amount of Euro [**] per calendar year,
provided that this cap will not apply with regard to fixing efforts on
functional enhancements and First Subsequent Release (as defined in the Non-
exclusive Software License Agreement) for work identified before the end of the
first week after the production start of such functional enhancements or First
Subsequent Release. However, DBAG will provide Ceres an estimate of the
anticipated costs for completing work under a System Investigation Request (and,
if appropriate, updates of the estimate) as soon as reasonably possible.
Schedules to the Software Maintenance Agreement
Final
SCHEDULE 4.4 TO THE SOFTWARE MAINTENANCE AGREEMENT
MSDA Change Requests and
System Investigation Requests
The following Change Requests and System Investigation Requests have been
initiated but not completed under the Master Software Development Agreement:
Schedules to the Software Maintenance Agreement
Final
Schedule 4.4 to the Software Agreement
-2-
-----------------------------------------------------------------------------------------------------------------------
ID# Title Non-recurring impacts Comment Monthly recurring impact
on costs in (Euro) (non-recurring impacts) on costs in (Euro)
-----------------------------------------------------------------------------------------------------------------------
CR082 GATE Maintenance (Euro) [**] fixed (Euro) [**] per MISS annually
-----------------------------------------------------------------------------------------------------------------------
CR085 Windows 2000 Support (Euro) [**] estimated;
Necessary changes to the ace
software (resulting from
Windows 2000 requirements)
with an effort of more than
20wd as well as the Windows
2000 Kit Build, -Test and
-Distribution is not covered
by thisCR and have to be
requested separate.
-----------------------------------------------------------------------------------------------------------------------
CR087 Autoleg (Euro) [**] fixed
-----------------------------------------------------------------------------------------------------------------------
CR090 BCP Production (Euro) [**] (Euro) [**] fixed; (Euro) [**]
(Euro) [**] estimated
-----------------------------------------------------------------------------------------------------------------------
CR091 BCP Market Supervision (Euro)[**] per workspace
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------
ID# Comment Status
(recurring impacts)
-----------------------------------------------------------------
CR082 fixed Not approved yet
-----------------------------------------------------------------
CR085 Approved
-----------------------------------------------------------------
CR087 Approved
-----------------------------------------------------------------
CR090 fixed Approved
-----------------------------------------------------------------
CR091 fixed; Approved
only applicable in calendar months
in which the infrastructure was
utilized by CBOT Market Operations
-----------------------------------------------------------------
Schedules to the Software Maintenance Agreement
Final
SCHEDULE 4.4 TO THE SOFTWARE MAINTENANCE AGREEMENT
-3-
Last Update: Thursday 23rd May 2002
Currently Open SIRs
------------------------------------------------------------------------------------------------------------------------------
SIR Number Comments Decision Effort (MD) Short Description
-----------------------------------------------------------------------------------------------------------------------------------
1 14745 Will be implemented with #18578 (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
2 17633 CBOT Approved - In Implementation (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
3 17948 CBOT Approved - Installed in simulation 10.05.02 Test failed. (Euro) [**] [**]
Re-opened
-----------------------------------------------------------------------------------------------------------------------------------
4 18095 Set to HOLD and await further information from CBOT (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
5 18434 In Implementation (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
6 18577 CBOT Approved - In Implementation - see ace Open CRs sheet (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
7 18911 CBOT Approved - Fixed - Waiting on 17948 (after #3) (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
8 18968 CBOT Approved - In Implementation (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
9 19016 CBOT Approved - In Implementation (after #8) (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
10 19107 CBOT Approved - Implementation Complete (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
11 19221 CBOT Approved - In Implementation (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
12 19308 DB Investigation ongoing (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
13 19327 Await CBOT approval to investigate further (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
14 19384 CBOT Approved (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
15 19388 DB Investigation ongoing (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
16 19389 DB Investigation ongoing (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
17 19411 CBOT Approved - Implementation Complete (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
18 19445 CBOT Approved (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
19 19503 DB Investigation ongoing (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
Schedules to the Software Maintenance Agreement
Final
Schedule 4.4 to the Software Maintenance Agreement
-4-
SIRs fixed and in simulation (Highlighted means taken into simulation in the
last period)
--------------------------------------------------------------------------------------------------------------------------------
SIR Number Comments In Simul. Effort (MD) Short Description
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
SIRs fixed and taken to production in the last period
--------------------------------------------------------------------------------------------------------------------------------
SIR Number Comments In Prod. Effort (MD) Short Description
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Next Front-end kit
--------------------------------------------------------------------------------------------------------------------------------
SIR Number Comments Effort (Euro) Short Description
-----------------------------------------------------------------------------------------------------------------------------------
1 16913 Fixed - Await next front-end kit (Euro) - [**]
-----------------------------------------------------------------------------------------------------------------------------------
2 18153 Fixed - Await next front-end kit (Euro) [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
3 18607 Fixed - Await next front-end kit (Euro) - [**]
-----------------------------------------------------------------------------------------------------------------------------------
4 19414 Fixed - SIR resulted from W2K tests (Euro) - [**]
-----------------------------------------------------------------------------------------------------------------------------------
5 19417 Fixed - SIR resulted from W2K tests (Euro) - [**]
-----------------------------------------------------------------------------------------------------------------------------------
6 19418 Fixed - SIR resulted from W2K tests (Euro) - [**]
-----------------------------------------------------------------------------------------------------------------------------------
Schedules to the Software Maintenance Agreement
Final
Schedule 5.4 to the Software Maintenance Agreement
Program Managers/Eurex Manager
--------------------------------------------------------------------------------
Manager Substitute
--------------------------------------------------------------------------------
DBAG
--------------------------------------------------------------------------------
Ceres ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------------------------------------------------
Eurex ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------------
Schedules to the Software Maintenance Agreement
Final
Schedule 4.1.1 to the Software Maintenance 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 Software Maintenance
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 Software Maintenance Agreement
Final
Schedule 10.2 to the Software Maintenance Agreement
DBAG Catalogue of Prices
1. General Provisions
1.1 All amounts are in Euro (Euro), without VAT.
1.2 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. Software Research and Development, Consulting
2.1 Description of Work
These services are software research and development as well as consulting
and support services including the selection, development, introduction and
maintenance of software, operation and project management, all as described
in more detail in the Agreement, its Schedules and in any Change Requests.
2.2 Remuneration
Unless a fixed price is agreed, the following hourly rates apply for work
performed by individuals in the following DBAG classifications, regardless
of whether the individuals are DBAG employees, Freelancers or subcontractor
employees.
-------------------------------------------
Price Levels Price per hour
-------------------------------------------
Analyst (Euro) [**]
-------------------------------------------
Junior Consultant (Euro) [**]
-------------------------------------------
Specialist (Euro) [**]
-------------------------------------------
Consultant (Euro) [**]
-------------------------------------------
Schedules to the Software Maintenance Agreement
Final
Schedule 10.2 to the Software Maintenance Agreement.
-2-
-------------------------------------------
Price Levels Price per hour
-------------------------------------------
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 3.1 below),
travel in accordance with the DBAG standard travel policies). DBAG
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 DBAG.
DBAG has informed 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.
3. Development Environment
3.1 Description
DBAG 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, DBAG 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.
Schedules to the Software Maintenance Agreement
Final
Schedule 10.2 to the Software Maintenance Agreement.
-3-
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.
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.
Schedules to the Software Maintenance Agreement
Final
Schedule 10.2 to the Software Maintenance Agreement.
-4-
3.2 Remuneration
The remuneration for the use of the Development Environment is not contained in
the hourly rates for DBAG's personnel and DBAG's 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 DBAG's subcontractors working on a fixed
price basis, DBAG will charge (Euro) [**] per hour and person (based on 8 hours
per day) for the use of the Development Environment.
Schedules to the Software Maintenance Agreement
Final