Exhibit 10.19
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment. Asterisks denote omissions.
Master Software Development Agreement
This Master Software Development Agreement (this "Agreement") is entered into
between,
on the one hand, Deutsche Borse Systems AG, ▇▇▇▇▇▇▇▇▇▇▇ ▇ - ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "DBS")
and, on the other hand,
1. Deutsche Borse Aktiengesellschaft, ▇▇▇▇▇▇▇▇▇▇▇ ▇ - ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "DBAG")
2. Swiss Stock Exchange, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "SWX")
3. Board of Trade of the City of Chicago, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "CBOT")
4. Ceres Trading Limited Partnership, c/o Board of Trade of the City of
Chicago, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "Ceres")
5. Ceres Alliance L.L.C., c/o Board of Trade of the City of Chicago, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America
(hereinafter, "Ceres Alliance")
6. Eurex Frankfurt AG, ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "Eurex Frankfurt")
7. Eurex Zurich AG, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "Eurex Zurich")
8. Eurex Clearing AG, ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
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h(hereinafter, "Eurex Clearing")
9. CBOT/Eurex Alliance, L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604, United States of America
(hereinafter, "LLC")
Preamble
A. DBAG and SWX originally developed and now hold Proprietary Rights in
the Programs, known as "Eurex 2.0". The Development Parties (DBAG, SWX,
CBOT and Ceres)entered into a Software License Agreement dated 1
October 1999 (the "Software License Agreement") that governs their
respective rights to the Programs.
B. DBAG and SWX further developed the Programs during the period up to 1
October 1999, resulting in the Release 3.0 Modifications, which include
versions 3.0 and 3.1 ("Eurex 3.0" and "Eurex 3.1"). The Software
License Agreement sets forth the Development Parties' respective rights
to the Release 3.0 Modifications.
C. DBAG and SWX entrusted DBS with the maintenance and further development
of the Programs under two separate Consulting and Support Agreements
(Beratungs- und Unterstutzungsvertrage) dated 25 March 1999 (the
"Consulting Agreements").
D. DBAG, SWX, Eurex Zurich, Eurex Frankfurt, Eurex Deutschland, CBOT,
Ceres and Ceres Alliance entered into an Alliance Agreement dated 1
October 1999 (the "Alliance Agreement") in order to coordinate their
efforts in establishing, operating and maintaining the System as a
common technological platform. For purposes of the Alliance Agreement,
LLC will act as the "Future Development Entity" under this Agreement.
E. Without the participation of the CBOT Group, DBS commenced development
of version 4.0 of the Eurex Software ("Eurex 4.0") on the basis of the
Consulting Agreements and, at the end of January 2000, DBS finalized
the software build for Eurex 4.0, which will be the basis for the
development of a new version of the Eurex Software ("JV Release 1.0")
under this Agreement. The Development Parties' respective rights to
Eurex 4.0 are described in the Software License Agreement and the
Alliance Agreement. On 20 January 2000, DBS, Ceres and LLC entered into
an Interim Agreement (the "Interim Agreement") covering development
work on the Eurex Software and the implementation, operation and
maintenance of the System with regard to the CBOT Group until this
Agreement and the Systems Operations Agreement are executed.
F. DBAG and SWX, acting through their joint subsidiary Eurex Zurich and
Eurex Zurich's wholly owned subsidiaries Eurex Frankfurt and Eurex
Clearing (Eurex Zurich, Eurex Frankfurt and Eurex Clearing referred to
jointly as the "Eurex Entities"), entered into Service Agreements
(Dienstleistungsvertrage) with DBS on 25 March 1999 (the "Service
Agreements") under which
-3-
DBS currently operates and maintains the System for Eurex Zurich and
for Eurex Deutschland, the German futures and options exchange in
Frankfurt am Main (run by Eurex Frankfurt). Eurex Deutschland,
▇▇▇▇▇▇▇▇▇▇▇ ▇ - ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, is a public law
entity existing under German law.
G. The Development Parties wish to establish JV Release 1.0 for the CBOT
Group and Eurex 4.1 for the Eurex Exchanges as well as future versions
of the Eurex Software as part of the common technological platform to
operate the Exchanges as two separate derivatives markets and to
operate other exchanges pursuant to the Alliance Agreement. The
Development Parties' respective rights to JV Release 1.0 and Eurex 4.1
are described in the Software License Agreement and the Alliance
Agreement.
H. The parties to this Agreement are executing this Agreement, under which
DBS will develop and maintain the Eurex Software for LLC on behalf of
the Development Parties and are also executing a "Systems Operations
Agreement" under which DBS will implement, operate and maintain the
System for LLC and the Eurex Entities on behalf of the Exchanges and
the LLC Group.
(S) 1
Definitions, Priorities in the Contractual Relationships, Cooperation
and Fairnes
1.1 Definitions. 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.
1.2 Scope. This Agreement governs the relationship between DBS, on the one
hand, and the LLC Group and its members, on the other hand, with regard
to the development and maintenance of the Eurex Software and any other
software development work even if such other software development work
has been initiated under the Systems Operations Agreement. The
installation and implementation of the Eurex Software in the production
environment and the operation, maintenance and development of the
System will be governed by the Systems Operations Agreement. The
parties will, however, coordinate the activities under this Agreement
and the Systems Operations Agreement.
1.3 Order of Precedence. The Alliance Agreement, the Software License
Agreement, the corporate governance documents and the shareholder
agreements between or among two or more members of the LLC Group have
priority over the terms of this Agreement with regard to their rights
and obligations under such agreements, and the provisions in this
Agreement are not to be considered for purposes of interpretation of
those documents and agreements. The various agreements among the
members of each of the Eurex Group and the CBOT Group control the
relationships of the members within each group, and the provisions in
this Agreement are not to be considered for purposes of interpretation
of those agreements. Nothing in this Agreement will override or modify
the terms of, or waive any rights under, any of such other existing
agreements between the Eurex Group and the CBOT Group. However, this
Agreement supersedes the
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Interim Agreement, and payments made under the Interim Agreement will
be credited against payments due under this Agreement.
1.4 Suspension. This Agreement suspends the Service Agreements and the
Consulting Agreements with regard to the rights and obligations of DBS
vis-a-vis each member of the Eurex Group effective on the first day of
the calendar month in which this Agreement is signed and so long as
this Agreement is in effect with respect to all members of the Eurex
Group; provided, that all change requests which have not yet been
completed (as such change requests are identified in Schedule 1.4) and
all schedules under such Service Agreements and Consulting Agreements
are hereby incorporated into this Agreement. DBS will provide copies of
all such change requests to each member of the LLC Group within thirty
days of execution of this Agreement. As soon as this Agreement
terminates with respect to a member of the Eurex Group, the Service
Agreements and the Consulting Agreements will, however, remain in
effect with respect to such member of the Eurex Group and will replace
this Agreement with regard to DBS's rights and obligations vis-a-vis
such member of the Eurex Group, unless and until a follow-up agreement
pursuant to Clause 18.3 becomes effective.
1.5 Cooperation. The parties hereby agree to cooperate closely and in a
fair manner. The parties agree that, upon execution of this Agreement,
questions, in particular those that may arise out of future business
and organizational developments of the members of the LLC Group or that
may be the result of other circumstances material to the relationship
among the parties, may not be entirely anticipated in this Agreement
from a factual and legal point of view and thus cannot be provided for
in this Agreement. If any such questions arise with regard to this
Agreement, then the parties will undertake to renegotiate the term or
terms in question in order to reach a reasonable agreement reflecting
their mutual interests. The parties will use their commercially
reasonable best efforts to assure the successful development and
maintenance of the Eurex Software ready for the operation of the
Exchanges as separate derivatives markets with equal access to the
resources provided for under this Agreement; such equality of access
will have absolute priority.
1.6 Fairness. The parties acknowledge that DBS is a wholly-owned subsidiary
of DBAG and that DBAG and DBS are parties to a Profit and Loss Sharing
Agreement (Ergebnisabfuehrungsvertrag). The terms and conditions of
this Agreement including, without limitation, the DBS Catalogue of
Prices, will be no less favorable to the members of the LLC Group than
the terms and conditions (from DBAG's perspective) of any agreement
pursuant to which DBS develops, maintains or operates any similar
software program or computer network, directly or indirectly, in part
or in total, for DBAG including its Affiliates. DBS represents that the
DBS Catalogue of Prices corresponds and will, when adjusted pursuant to
Clause 9.2, continue to correspond to general, competitive market rates
and will not unduly favor DBS as a subsidiary of DBAG.
1.7 Resource Allocation. The parties anticipate that there will be numerous
Change Requests submitted to DBS during the course of this Agreement
which may place considerable demands on
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DBS's resources. The Change Requests may also require considerable
resources from the other parties. DBS will treat the LLC Group at least
as favorably as any of its other customers when allocating resources to
new Sub-Projects. In order to enable DBS and the other parties to
allocate resources in a timely manner, the LLC, together with DBS, will
review anticipated needs for a subsequent calendar year during the
period from 1 September to 31 October of the current year, and the
parties will review the allocations again during June of the subsequent
year for the rest of the year.
1.8 Subcontracting Agreement. To the extent that DBS acquires or has claims
to greater rights from ▇▇▇▇▇▇▇▇ Consulting related to the development
of JV Release 1.0 under DBS' subcontracting agreement with ▇▇▇▇▇▇▇▇
Consulting than any member of the LLC Group has against DBS under this
Agreement, DBS will pass through and assign those rights and claims to
such member of the LLC Group (or if non-assignable, DBS will exercise
such rights as instructed by and for the benefit of such member of the
LLC Group). Unless the Development Parties agree otherwise, the
Development Parties will apportion those rights and claims to rights
among themselves in accordance with the Alliance Agreement and Software
License Agreement.
1.9 Agreements concerning Restricted Products. DBS will not enter into any
separate agreements with any of the other parties to this Agreement
about the development, implementation, operation or maintenance of the
System involving another party`s Restricted Products without the
agreement of such party. Notice of other such matters, proposals or
agreements will be provided to the LLC for a thirty day review period,
but nothing in this Agreement will restrict any party from moving
forward from entering into such other agreements with DBS. Such notice
shall be kept confidential by the members of the LLC Group.
(S) 2
Engagement and Project Structure
2.1 Engagement. On behalf of the Development Parties, LLC hereby engages
DBS as general contractor to develop and maintain JV Release 1.0 and
any further versions of the Eurex Software as part of the System. The
development and maintenance of JV Release 1.0 and any further versions
of the Eurex Software or other applications requested by LLC or a
Development Party constitutes the "Project". The Project can be divided
into various "Sub-Projects" (i.e., the current Sub-Projects under
Clause 2.2 and future Change Requests under Clause 2.5).
2.2 Research and Development. The Project will initially consist of the
following Sub-Projects:
2.2.1 Initial Software Research and Development in which DBS will
develop JV Release 1.0 on the basis of Eurex 4.0 as set forth
in Schedule 2.2.1. This Schedule 2.2.1 contains the payment
schedule for Ceres and the specifications for JV Release 1.0.
The specifications for JV Release 1.0 include, without
limitation, the specifications for the transition from Eurex
3.1 through Eurex 4.0 to JV Release 1.0, the Fine
Specifications for
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Eurex 4.0, which are contained on a CD ROM in the Schedule,
and the Release Notes, which describe the difference between
Eurex 4.0 and JV Release 1.0. DBS will make JV Release 1.0
available to the Development Parties in the Test Environment
for testing by 16 June 2000, and DBS will commence
installation of the Signed Off JV Release 1.0 in the
Production Environment by 10 July 2000 for simulation.
Acceptance of JV Release 1.0 is scheduled for 4 August 2000,
and the System is scheduled to be ready for commencement of
production on 25 August 2000 under the Systems Operations
Agreement. LLC, Ceres and DBS will agree on the actual
commencement date for production. In the event that DBS fails
to comply with the dates set forth above, DBS will grant
Performance Credits to Ceres in accordance with the chart on
Schedule 2.2.1a. If the CBOT Group exercises its right to
terminate for convenience under Clause 18.2, the fixed
payments in lieu of payments underss. 649 German Civil Code
are set forth in Schedule 2.2.1b.
2.2.2 Application Maintenance in which DBS will maintain JV Release
1.0 as set forth in Schedule 2.2.2. The maintenance of JV
Release 1.0 will be ancillary to the development of JV Release
1.0. Unless otherwise instructed by LLC, DBS will provide
Application Maintenance under this Agreement for the
Development Parties on JV Release 1.0 until LLC's
implementation of future versions of the Eurex Software. LLC
may require DBS to provide Application Maintenance on future
versions of the Eurex Software for the Development Parties by
providing DBS with written notice of its desire for DBS to
provide such Application Maintenance. LLC and DBS will then
negotiate in good faith the terms and conditions of such
Application Maintenance, which terms and conditions will be
set forth in a Change Request.
The scope of work for all Sub-Projects is defined in Schedules 2.2.1,
2.2.2 and any Change Requests (see, Clause 2.5), and may be refined in
appropriate document Deliverables once such Deliverables have been
Signed Off (see, Section 8). The scheduling of work for each Sub-
Project (e.g., milestones, completion dates and Performance Credits)
will be set forth in the corresponding Schedule or Change Request.
2.3 Priority. Additional work can be identified during the course of the
Project. The terms and conditions for all work are set forth in
Schedules 2.2.1 and 2.2.2 and the Change Requests. If any provision in
Schedules 2.2.1 and 2.2.2 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 2.2.1 or
2.2.2 or a Change Request contradicts a provision in a Change Request,
the most recent provision will have priority.
2.4 Deliverables, Services, Tasks. Schedules 2.2.1 and 2.2.2 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
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("Detailed Definition") for itself or for other Deliverables. Schedules
and Change Requests relating to ongoing services ("Services") will
describe the service in detail and the standards for determining the
quality of service. Schedules and Change Requests, and documents
prepared pursuant to Schedules and Change Requests, will assign
specific work ("Tasks") to the parties and establish time frames in
which the Tasks are to be completed; Tasks will also constitute
Deliverables to the extent that the Task requires the production of a
specific work product and not just an ongoing service. Schedules and
Change Requests can also establish the price for the Tasks, together
with a payment schedule and may include a schedule of resources to be
devoted to the work, including the number of man days each party will
provide, the equipment and the premises where the work will be carried
out.
2.5 Change Request. LLC or DBS can request a change in the scope of work or
any other part of the Project at any time ("Change Request"). A Change
Request will be in writing and will follow a format which DBS and LLC
will agree without undue delay. A Change Request must contain
sufficient information to enable the addressee to reasonably evaluate
the Change Request including particularly:
. 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 time frame for completion of affected Deliverables,
. impact on service levels, particularly with regard to the service
levels established under the 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 price
scheme or a fixed price for the additional work together with a
payment schedule.
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 can require the other party to assist
in providing the missing information without undue delay. If a Change
Request initiated by LLC requires DBS to expend more than one man day
in order to complete the information, DBS can charge for its work on a
"time and materials" basis if DBS has informed LLC in advance that it
intends to charge for such efforts. DBS will not charge if one man day
or less is required to complete the information.
-8-
A Change Request will become binding when it has been signed by both
LLC and DBS. LLC and DBS will evaluate Change Requests without undue
delay. No party is under an obligation to perform work under a Change
Request prior to its having been signed; the costs for performing any
such work prior to signing will be borne by the party performing the
work.
LLC can require DBS to accept a Change Request if (i) the Change
Request is related to JV Release 1.0 or subsequent versions of the
Eurex Software, and (ii) LLC has agreed to compensate DBS for the work
under the Change Request in accordance with the then-applicable DBS
Catalogue of Prices (see, Clause 9.2). DBS cannot require LLC to accept
a Change Request.
A Development Party submitting an instruction under Clause 3.2.1 or
3.2.2 must comply with the Change Request procedure. The Change Request
will become binding when it has been signed by one or more authorized
officers of the Development Party without the LLC Program Managers
having to sign it. Such a Change Request cannot be to the detriment of
another party which does not sign the Change Request. In the case of a
Change Request which is to detriment of a party, all affected parties
(including DBS) will use their commercially reasonable best efforts to
achieve a work around. The other provisions governing Change Requests
and the pertinent provisions of this Agreement apply, mutatis mutandis.
DBS will treat Change Requests and instructions proposed by the CBOT
Group no less favorably than DBS treats those submitted by the LLC or
the Eurex Entities, respectively.
2.6 Third Party Bids. In spite of the appointment of DBS as general
contractor, LLC can also solicit bids from third parties for any
Modifications not covered by Schedules 2.2.1 and 2.2.2, subject to the
following:
2.6.1 LLC will also invite DBS as a preferred provider to bid on any
future development of Modifications and will provide DBS with
the same information it provides to other parties who are
asked to bid. LLC will treat DBS at least as favorably as
other bidders for the work.
2.6.2 DBS will always be involved through the Change Request
procedure in both pre-acceptance testing of any Modifications
developed by a third party and subsequent testing. As part of
the Test Procedures, LLC will provide DBS copies of the source
code and documentation for any Modifications developed by a
third party to the extent that LLC has access to the source
code and documentation.
2.6.3 DBS is not required to put any Modifications developed by a
third party into production until the tests have demonstrated
that such Modifications do not have a detrimental impact on
Service Levels established under the Systems Operations
Agreement.
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2.6.4 DBS will not unreasonably object to or delay acceptance of
Modifications developed by a third party or unreasonably
refuse to put, or delay putting, them into production.
2.6.5 DBS will provide reasonable cooperation and assistance to LLC
and third party bidders (on a time and materials basis charged
to LLC) in connection with soliciting bids for Modifications
not covered by Schedules 2.2.1 and 2.2.2.
(S) 3
Participants in the Project
3.1 Supervision. DBS will organize and supervise the Project and the
performance by each party of its obligations under Schedules 2.2.1 and
2.2.2 and the Change Requests. DBS will bear the overall responsibility
for completion of work within the scheduled time frames and within
agreed budgets for manpower and expense. DBS will, therefore, be
responsible for the management of the Project including the
coordination and direction of the various participants' efforts.
3.2 Instructions. The Project requires extensive cooperation by all
parties. LLC will be responsible for ensuring and coordinating the
contributions of the members of the LLC Group. Only LLC has authority
to issue instructions to DBS. If another party issues an instruction to
DBS, the instruction is invalid until LLC confirms the instruction. The
only exceptions to the preceding two sentences are as follows:
3.2.1 If one of the Development Parties issues a written instruction
to DBS which states that immediate compliance with the
instruction is required by a regulatory agency having
authority over an Exchange, DBS must immediately (i) commence
work in accordance with the instruction, and (ii) forward a
copy of the instruction to LLC. The instructing Development
Party will pay DBS for work under such an instruction on a
time and materials basis (see, Clause 9.2). If DBS reasonably
believes that implementation of the Development Party's
instruction is contrary to other work under the Project or
would materially impair DBS's ability to complete the Project
by the scheduled date, DBS will notify the instructing
Development Party and LLC accordingly, and DBS will not be
required to implement the instruction until LLC has confirmed
the instruction.
3.2.2 If one of the Development Parties requests (using the Change
Request form) a Modification to the Eurex Software (other than
under Clause 3.2.1), DBS will immediately ask LLC to confirm
the request. If LLC does not confirm the request within one
week, the Development Party which made the request can
instruct DBS to implement the Modification at that Development
Party's expense, even if LLC has rejected the request. If DBS
reasonably believes that implementation of the instruction is
contrary to other work under the Project, DBS will notify the
instructing Development Party and LLC accordingly, and DBS
will not be required to implement the instruction until LLC
has confirmed the instruction.
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3.2.3 Clause 3.2.1 also applies to instructions from the Eurex Group
with regard to clearing functionality so long as CBOT (or one
of its Affiliates or CBOT's clearing house) is not using this
functionality. Afterwards, instructions from a Development
Party concerning clearing will fall under Clauses 3.2.1 (with
respect to requirements of a regulatory agency) or 3.2.2.
3.3 Delays. Reference to obligations of LLC also includes all Tasks to be
performed by the members of the LLC Group. DBS will not be responsible
for delays in the completion of the Projects or for budget overruns
which are caused by acts or omissions by a member of the LLC Group. DBS
must notify LLC of the specific risk that the delay or budget overrun
will occur, and the relevant member of the LLC Group must be given the
opportunity to perform the relevant Task without undue delay.
3.4 LLC Participation. LLC will provide the resources identified in
Schedules 2.2.1 and 2.2.2 and the Change Requests and perform such
other Tasks as may be set forth in the Schedules 2.2.1 or 2.2.2,
respectively, and the Change Requests. LLC can participate in the
Project, and LLC will provide DBS with all reasonable cooperation and
assistance in the Project, in each case, including:
3.4.1 LLC will make all decisions reasonably requested of it by DBS
in a timely manner; such decisions will be made at the latest
within one week of receipt of a written request from DBS for
the decision; this one week period does not commence to run if
LLC still requires reasonable information from DBS before
making the decision. The one week period will be extended by a
reasonable amount of time if circumstances require this.
3.4.2 LLC will provide in a timely manner all information which DBS
reasonably requests.
3.4.3 As DBS may reasonably request assistance, LLC will make
employees of the applicable members of the LLC Group (or their
Freelancers and subcontractors) available at locations where
work on the Project is being conducted in order to provide
such assistance in a timely manner.
3.4.4 The members of the LLC Group may assign additional personnel
(including employees and Freelancers) to participate in the
Project for the purpose of acquiring know-how about the System
upon submitting a written Change Request to DBS specifying the
following information:
- the identity and current employment status of the personnel,
- where and why the personnel should participate in the
Project,
- the duration of the participation,
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- to the extent reasonably possible, what type of know-how the
personnel should acquire.
The members of the LLC Group may also assign subcontractors'
employees upon receiving the prior written consent of DBS,
which will not be unreasonably refused or delayed. Reasonable
grounds include
(i) the participation of such subcontractor employees would
materially interfere in DBS's performance of its
obligations under the Project, or
(ii) the participation of such subcontractor employees would
result in a material risk that highly sensitive DBS
know-how would become available to potential DBS
competitors.
DBS can charge for accommodating such personnel (including
compensation for office space and other facilities provided to
such personnel) on a time and materials basis.
3.4.5 LLC will provide appropriately equipped facilities designated
by the Program Managers, particularly in the United States of
America (the "Facilities"), for carrying out the Project
within the scheduled time frame at the reasonable request of
DBS. The appropriate equipment in the Facilities does not
include components of the System which are being provided by
DBS.
3.4.6 LLC will provide DBS and its subcontractors with access to the
Facilities 24 hours per day on every day of the year
(including weekends and holidays) except to the extent that
security requirements make such access unreasonable.
3.4.7 DBS will provide reasonable assistance (including consulting
and access to the Development Environment and the Network) to
the members of the LLC Group and their employees and
subcontractors so that they can perform their Tasks and other
work relating to the Eurex Software (including Modifications
to be developed by third parties).
3.5 Program / Project Managers. DBS will appoint one Program Manager. LLC
will appoint two Program Managers, one representing the CBOT Group and
the other representing the Eurex Group. The Program Managers are
entitled to make all decisions and issue all declarations on behalf of
their principals with regard to any aspect of the Project. LLC's
Program Managers can only act jointly unless specifically provided
otherwise in this Agreement (e.g., Clauses 7.3 and 9.1). Each party
will also appoint substitute Program Managers who can exercise the
authority of the Program Managers in their absence. LLC and DBS do not
have any responsibility for monitoring whether the other side's Program
Manager(s) have actually complied with the internal approval
procedures. One side's Program Manager(s) can delegate authority for a
specific matter or for categories of matters to another person by
informing the other side's Program Manager(s) in
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writing; the delegation of authority can only be cancelled by written
notification to the other Program Managers.
Each party will appoint a "Project Manager" and, if appropriate, a
substitute for each Sub-Project. The Program Managers and their
substitutes can also act as Project Managers. A person can be appointed
as a Project Manager for more than one Sub-Project. The Project
Managers coordinate the daily work on the corresponding Project, but
the Project Managers are not authorized to issue legally binding
declarations on behalf of their principals. The names of the current
Program Managers, their substitutes and the Project Managers and their
substitutes, if any, are set forth in Schedule 3.5.
3.6 Steering Committee. As soon as practicable after the execution date of
this Agreement, the parties will establish a "Steering Committee" which
is at the same time "Steering Committee" of the Systems Operations
Agreement and which will have the following functions:
. monitor the progress of the Project and each Sub-Project and the
coordination with activities under this Agreement and the Systems
Operations Agreement,
. review the timetables, work plans and staffing for each Sub-
Project,
. review the scope of work in each Sub-Project,
. review Change Requests,
. review Project Problems.
The Steering Committee will be structured as follows:
3.6.1 The Program Managers will be members of the Steering
Committee. The Steering Committee will also include such other
individuals as DBS and LLC may appoint in their own reasonable
discretion so long as the total number of members does not
exceed 9; at least one third of the members in the Steering
Committee will be appointed by DBS. LLC will appoint the other
members. The parties anticipate that the composition of the
Steering Committee will be virtually identical with the
composition of the Steering Committee under the Systems
Operations Agreement, although this is not required.
3.6.2 The composition of the Steering Committee on the execution
date of this Agreement is set forth in Schedule 3.6.2. Each
party may change its representatives in the Steering Committee
upon two week's written notice to the other party; provided,
however, that the Program Managers will always be members of
the Steering Committee.
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3.6.3 The Steering Committee will meet (including by telephone or
video conference) whenever a meeting is called by a Program
Manager. Otherwise, the Steering Committee is completely free
in how it organizes its activities.
3.6.4 The Steering Committee is only intended to promote the flow of
information between the parties. Thus, no issues will be
decided by a vote and the Steering Committee will not have any
authority to issue legally binding declarations on behalf of
any of the parties. Each party remains free to make its own
decisions on issues arising under the Project.
3.7 Escalation Committee. The parties will establish an "Escalation
Committee" which will consist of CBOT's Chairman and Chief Executive
Officer, the Chief Executive Officer of DBAG's Management Board
(Vorsitzender des Vorstands), the Chairman of SWX and the Chief
Executive Officer of DBS's Management Board. The purpose of the
Escalation Committee is to discuss Project Problems which are not
resolved after being referred to the Steering Committee (see, Clause
7.4).
3.8 Subcontractors. Each party may engage third parties as subcontractors
in connection with this Agreement. Subject to Clause 2.6, DBS and LLC
must obtain the prior written consent of the other party prior to
engaging a subcontractor if the annual remuneration to the
subcontractor is anticipated to exceed EURO 500,000, which consent will
not be unreasonably withheld. DBS or LLC, as the case may be, must
obtain the other's written approval prior to engaging any subcontractor
that may use or have access to, or allowing any previously engaged
subcontractor to use or have access to, personal or private data of any
person. A subcontractor who is a natural person is a "Freelancer". Each
party will be liable for the performance of its subcontractors under
ss. 278 German Civil Code. Each party must especially make sure that
its subcontractors comply with all provisions of the Agreement relating
to confidentiality and intellectual property rights (e.g., Sections 13,
14 and 15), and each party must require each of its subcontractors to
execute appropriate non-disclosure agreements consistent with the
requirements of Section 15. DBS will use commercially reasonable
efforts when hiring subcontractors to use local resources. DBS will
also use commercially reasonable efforts to include provisions in
contracts with subcontractors which will permit DBS to assign the
subcontracts to members of the LLC Group or third parties who provide
services to them after termination of this Agreement.
(S) 4
Legal and Regulatory Environment
4.1 Compliance. DBS will build the Eurex Software so that it complies with
legal and regulatory requirements (including the technical basis for
each of the Exchanges to comply with the IOSCO Principles for the
Oversight of Screen Based Trading Systems for Derivative Products to
the extent that specific IOSCO Principles relate to functionality
included in the Eurex Software) for the operation of the Exchanges in
effect on the execution date of this Agreement. LLC is responsible
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for informing DBS about these requirements and their impact on the
functionality of the Eurex Software.
4.2 Other Standards. LLC can require that the Project comply with other
standards at any time during the Project by initiating the Change
Request procedure.
4.3 Monitoring. LLC will monitor all changes in the legal and regulatory
requirements and standards set forth in the preceding Clauses 4.1 and
4.2. LLC will inform DBS without undue delay about any changes needed
in the Eurex Software in order to comply with changes in such
requirements and standards, and DBS will implement such changes without
undue delay. The relevant Development Parties will bear the costs of
any changes in the Project resulting from changes in the applicable
legal and regulatory requirements and the standards designated by LLC
that occur after the execution date of this Agreement.
4.4 Regulatory Audits. DBS will grant reasonable access to its
facilities, records and personnel to regulatory authorities for the
purpose of auditing the Exchanges.
(S) 5
Development Tools and Environment, Equipment
5.1 Tools. DBS will use various tools and methodology ("Tools") during the
Project. DBS may modify the Tools or add and delete individual Tools in
its free discretion at any time; provided, however, that no
modification, addition or deletion will relieve DBS from any of its
obligations hereunder or adversely affect the performance of the
System. DBS represents that the development, use, operation and
maintenance of any Deliverable which it supplies will not require the
use of any Tool except to the extent expressly set forth in the
respective Detailed Definitions. DBS will obtain the prior written
consent of LLC prior to using any material Tool in the Project such as
third party Tools or Tools which are commercialized by DBS ("Material
Tool").
5.2 Use. DBS grants to the Ownership Parties a perpetual, irrevocable,
world-wide, non-exclusive license (with the right to sublicense in
connection with a sublicense of any part of the System) to use Tools
which are reasonably necessary for the development, implementation,
maintenance or use of the System even after termination of this
Agreement. This license includes the right to sublicense for the
purpose of developing, implementing, maintaining and using the System.
If there are any Tools that are used for operation of the System, the
Ownership Parties will have rights to such Tools under the Systems
Operations Agreement. The license for currently used Tools is royalty
free. Compensation for future Tools can be agreed. If DBS creates a
Tool outside of the scope of this Agreement after this Agreement is
signed, the use of such a Tool and the compensation for the license to
the Tool (based on a reasonable contribution to the costs DBS incurs in
developing the Tool) must be set forth in the corresponding Change
Request. The Ownership Parties have the right to approve the proposed
use of any Tool by executing such Change Request. If use of a Tool
requires the consent of a third party from whom DBS has
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obtained the Tool, at the request of any member of the LLC Group, DBS
will use its best efforts to obtain the consent at favorable
conditions, and the relevant member of the LLC Group will bear any
additional costs for obtaining the right to use the Tool (e.g.,
additional license fees to the third party).
5.3 Reliance. The LLC Group is relying on DBS's technical expertise to
select and use Tools that are appropriate and sufficient for the
completion of the Project. DBS grants no other warranty with regard to
Tools. LLC, its subcontractors and the other parties to this Agreement
will be given the opportunity to examine Tools prior to using them and
will acquire the use of Tools "as is" unless a third party has provided
a greater warranty, in which case the warranty will be assigned to LLC
or, if not assignable, DBS will exercise any warranty rights against
the third party for the account of LLC.
5.4 Location. DBS will perform most of the development work for the System
in its own facilities in Frankfurt am Main, and DBS will own the
development environment in Frankfurt am Main.
5.5 Advice. To the extent a member of the LLC Group purchases its own
equipment (including hardware, software, telecommunications materials,
and anything else relating to the System), DBS will recommend
appropriate equipment to LLC based on a Change Request and based on
information received from LLC and information developed during the
course of the Project. DBS will make its recommendations based on its
reasonable assessment of the Project's requirements. DBS assumes no
liability, however, for any defect in the equipment purchased. All
responsibility for purchasing the equipment and the risks associated
with any defect in such equipment will be borne by the purchaser. Each
member of the LLC Group is relying on DBS's technical expertise in
recommending equipment that is appropriate for such member's use of the
equipment in connection with the System.
5.6 Commissions. When making a recommendation about equipment which LLC or
one of the other parties should purchase, DBS will disclose to LLC or
the relevant other parties any commissions to which DBS might be
entitled from a third party supplier of the equipment for having made
the recommendation. DBS will pass the benefit of such commissions
actually received from a supplier to the purchaser. The amount of the
benefit in EURO will be calculated without interest and, if applicable,
converted to EURO at the reference exchange rate of the foreign
currency, quoted by the European Central Bank, in which the commission
is received on the first business day in Frankfurt/Main following
receipt of the commission; if the European Central Bank does not set a
reference exchange rate for the foreign currency, the applicable
exchange rate will be the rate for the purchase of EURO quoted by the
Deutsche Bank AG, Frankfurt am Main.
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(S) 6
Scope
6.1 Scope. The scope of work in the Project will be defined in Schedules
2.2.1 and 2.2.2 and the Change Requests, as refined in appropriate
document Deliverables once such Deliverables have been Signed Off (see,
Section 8). The LLC Group is relying on DBS's technical expertise to
define the scope of the Project and each Sub-Project based on the
functionality requested by the LLC Group. DBS is responsible for any
decisions it makes concerning the technology built into the System.
6.2 Alternative Solutions. The parties recognize that there may be various
solutions to a specific aspect of the Project (including the technology
built into the System). DBS will propose solutions which it reasonably
believes will best meet the needs of the LLC Group while complying with
the defined scope of work. If LLC rejects a proposed solution that
meets all of the requirements of this Agreement in favor of an
alternative, DBS will inform LLC 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 LLC such
as impact on service levels. If the parties cannot reach agreement
either at the operational level or after discussing the matter in the
Steering Committee, LLC can insist on its alternative solution. In this
event, DBS will be obliged to perform the work on the alternative
solution once a corresponding Change Request, in which LLC agrees to
compensate DBS for such work in accordance with the then-applicable DBS
Catalogue of Prices (see, Clause 9.2), has been signed by LLC. The
obligation of DBS to perform work under such a Change Request is
subject to the condition precedent that DBS has reasonable access to
the additional resources set forth in the notice submitted to LLC under
sentence 3. Notwithstanding LLC's insistence on its alternative
solution, DBS remains responsible pursuant to Clause 3.1 for the
successful completion of work under this Agreement.
(S) 7
Project Problems
7.1 Notification. LLC and DBS can notify each other at any time in writing
about a "Project Problem". A Project 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 Project,
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.
7.2 Timeliness. LLC and DBS will inform each other about a Project Problem
without undue delay after becoming aware of it. If documentary evidence
clearly shows that a party was aware of a Project Problem or should
have been aware of the Project 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 Project Problem cannot assert any claims or other
rights against the other party resulting from the Project Problem
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prior to notification, but the party raising the Project Problem can
require the other party to correct the Project Problem without undue
delay.
7.3 Content. LLC and DBS must notify each other of a Project Problem in a
written "Problem Report" which at a minimum contains sufficient
information (to the extent reasonably available to the notifying party)
under the following headings to reasonably evaluate the Project
Problem:
. description of the Project Problem including a designation of
those parts of the Project affected by the Project 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 Project
Problem and the corrective measures.
A Problem Report only needs to be signed by one Program Manager of the
party submitting the Problem Report. If a Project Problem relates only
to an instruction which a Development Party has issued under Clause
3.2, the Development Party itself can sign a Problem Report.
7.4 Resolution. If the Program Managers cannot resolve a Project Problem
within two weeks after a Problem Report has been submitted, either LLC
or DBS (or a Development Party in the case of a Project Problem
relating only to an instruction under Clause 3.2) can refer the Project
Problem to the Steering Committee for further discussion and
resolution; the Steering Committee cannot impose a resolution of a
Project Problem on a party without the approval of the party's
representative(s) in the Steering Committee. If this does not result in
a resolution of the Project Problem within two weeks of such referral,
any Program Manager can refer the Project Problem to the Escalation
Committee (see, Clause 3.7 above); the Escalation Committee cannot
impose a resolution of a Project Problem on a party without the party's
consent. If any Program Manager notifies the others in writing that the
Project Problem is urgent, the two week period for referral to the
Steering Committee or the Escalation Committee will not apply; i.e.,
the Project Problem can be referred immediately.
7.5 Continued Performance. Pending resolution of a Project Problem
(including through arbitration) involving an allegation of improper
performance on the part of DBS, LLC and any other party obliged to make
payments to DBS under a Schedule or a Change Request must continue to
make payments on DBS's invoices equal to (i) the amounts owed for work
not materially affected by the alleged improper performance, and (ii)
75% of the other invoiced amounts. DBS cannot suspend performance,
pending resolution of a Project Problem. However, if LLC or any other
party fails to
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comply with their obligation under the first sentence of this Clause,
DBS can suspend its performance subject to the following:
a. If a Development Party has suspended payment only under a
Change Request agreed with regard to an instruction the
Development Party issued under Clause 3.2, DBS can only
suspend performance of its work under that Change Request.
b. If a Development Party has suspended payment of its portion of
a Sub-Project Price, DBS will notify LLC. If the suspended
payment is in excess of what the Development Party is
permitted to suspend under the first sentence of this Clause
7.5, DBS can suspend its performance under the Sub-Project
unless the other Development Parties pay the excess suspended
amounts owed by the first Development Party within two weeks
after the LLC has received the notice under the preceding
sentence.
For so long as DBS is an Affiliate of DBAG, the above right of DBS to
suspend performance if payment is suspended does not exist if DBAG is
the Development Party which suspended payment. Under no circumstances
will DBS suspend performance except as permitted under this Clause 7.5.
7.6 Record. If the parties resolve a Project Problem without arbitration,
the parties will record the resolution in writing.
7.7 Unilateral Action. DBS will maintain a critical path schedule which
reasonably defines critical components which, if delayed, will have a
significant impact on the time for completion of any significant
Deliverable. Schedule 2.2.1 and Clause 2.2.1 contain the critical path
schedule governing the development and implementation of JV Release
1.0. The parties recognize, however, that the schedule may not be all
inclusive. In the event of an actual delay or a delay in complying with
the critical path schedule which DBS should reasonably anticipate, DBS
must inform LLC in reasonable detail about such problems and the
corrective procedures (including the time needed for correction)
without undue delay using the Project Problem report procedure. In an
emergency situation, DBS can take unilateral action to mitigate the
emergency and inform LLC without undue delay afterwards.
7.8 No Waiver. Compliance with the Project Problem procedure does not
waive any substantive rights or remedies under this Agreement.
(S) 8
Quality Control
8.1 Deliverables Sign-Off. LLC and DBS will submit Deliverables to the
other party for "Sign-Off" using a Sign-Off Form (the format of which
DBS and LLC will agree without undue delay). Sign-Off on a Deliverable
or Sub-Project does not constitute acceptance or part acceptance of
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such Deliverable or Sub-Project. The party receiving a Deliverable will
sign and return the Sign-Off Form or a Deficiency Report (in a form
which DBS and LLC will agree without undue delay). LLC 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"). LLC 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 only one of
the LLC's Program Managers; an LLC Sign-Off requires the signatures of
both Program Managers. The party responsible for the Deliverable will
correct the Deviations without undue delay and resubmit the
Deliverable. Subject to Clause 8.2, 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.
8.2 Repeat Attempts. If DBS fails to correct a Deviation listed in a
Deficiency Report (provided pursuant to Clause 8.1 or 8.4) on the first
try, DBS will not be entitled to charge for further work required to
correct the Deviation. Notwithstanding the foregoing, DBS will not
charge any additional fee for any work required to correct a Deviation
in a Deliverable to the extent that the Development Parties are paying
a fixed fee for such Deliverable. Should DBS fail to cure a Deviation
within a reasonable time, the members of the LLC Group may subcontract
the work to a third party(without going through the procedures in
Clause 2.6), and DBS will return any remuneration already received for
the Deliverable to the extent that the DBS work cannot reasonably be
used. DBS will cooperate with the new subcontractor. The liability of
DBS to make payments under this Clause 8.2 is limited to the amount
which DBS received for the corresponding work.
8.3 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, the party responsible for the
Deliverable will notify the receiving party accordingly, and the
receiving party can then initiate the Change Request procedure. If LLC
and DBS disagree about the existence of a Deviation and the
disagreement is not resolved by the respective Project Managers, either
DBS or LLC can initiate the Problem Report procedure.
8.4 Sub-Project Acceptance. DBS will notify LLC that a Sub-Project is ready
for Acceptance after LLC has Signed Off on all of the Deliverables for
the Sub-Project pursuant to Clause 8.1 and DBS has successfully
completed testing, unless otherwise agreed. LLC will have the right to
test (in accordance with the Test Procedures applicable to the Sub-
Project) all of the Deliverables and the Sub-Project as a whole, and in
combination with any other systems, software or hardware with which the
Deliverables are intended to be used. In particular, LLC will have the
right to test the Eurex Software as provided in the Systems Operations
Agreement. In accordance with Clauses 8.4.1 through 8.4.3, LLC will
either sign a Sub-Project Acceptance Form or a Deficiency Report.
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8.4.1 When LLC submits a Deficiency Report in connection with a
Sub-Project Acceptance, in addition to the detailed
description of any Deviation, LLC will classify the Deviation
as follows:
Class 1: The Deviation would prevent the Sub-Project as a whole
from operating or would have such an impact on the
operation of the Sub-Project that its use in
production would not be commercially viable.
Class 2: The Deviation would have a materially detrimental
impact on the operation of the Sub-Project as a whole,
although the Sub-Project 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 Sub-Project 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 Sub-Project as a
whole from operating or would have such an impact on
the operation that their 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
Sub-Project as a whole, although they could still be
used in production in a commercially viable manner, if
necessary with workarounds, the combination of Class 3
Deviations constitutes a Class 2 Deviation.
8.4.2 If LLC classifies a Deviation as a Class 1 Deviation during
the Test Procedure, LLC can cancel or interrupt the Test
Procedure and require DBS to reexamine the Sub-Project and
correct the Deviation and any other Deviations which were
already identified as soon as possible using its best efforts
prior to resubmitting the Sub-Project for the Test Procedure.
If LLC classifies a Deviation as a Class 2 Deviation during
the Test Procedure, the Test Procedure will continue to the
extent reasonably feasible, and DBS will correct the Deviation
and any other Deviations which were already identified as soon
as possible using its best efforts. LLC must only accept the
Sub-Project as a whole after conclusion of the Test Procedures
when all Class 1 Deviations have been corrected.
8.4.3 After conclusion of the Test Procedure, LLC is not entitled to
refuse Sub-Project Acceptance due to Class 2 or Class 3
Deviations. However, DBS must correct the Class 2 and Class 3
Deviations without undue delay after they have been reported.
Failure to submit the Sub-Project Acceptance Form or a Deficiency
Report within two weeks after the Test Procedures have been concluded
constitutes Acceptance of the Sub-Project. Clauses
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8.2 and 8.3 apply mutatis mutandis. Sub-Project Acceptance under this
Agreement will not prejudice the rights of LLC under acceptance
procedures pursuant to the Systems Operations Agreement. If LLC and DBS
disagree about the classification of a Deviation and the disagreement
is not resolved by the respective Project Managers, either DBS or LLC
can initiate the Problem Report procedures.
8.5 Services. Services, which are not part of any Deliverable (i.e.,
training services), are not subject to the Sign-Off procedures; rather,
LLC or DBS can register complaints on a Deficiency Report if they are
dissatisfied with a Service.
8.5.1 Complaint. During the performance of Services any
deficiencies must be submitted in writing to the party
providing the Services. If documentary evidence clearly shows
that a party receiving the Service 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 party fails to inform the other party within two
weeks of becoming aware, the party receiving the Service
cannot assert any claims or other rights against the other
party resulting from the deficiency in the Service prior to
notification, but the party receiving the Service can require
the other party to correct the deficiency in the Service
without undue delay. The party rendering the Service must
correct the deficiency at its expense.
8.5.2 Completion. Upon completion of Services, the party providing
the Services will inform the other party that the Services
have been completed using the Services Completion Notice form
(the format of which DBS and LLC will agree without undue
delay). Unless the party receiving the Services submits a
Deficiency Report within two weeks after receipt of the
Completion Notice, the Services will be deemed to have been
properly performed.
(S) 9
Project Price, Payment, Guarantee, Performance Guarantee
9.1 Project Price. Schedules 2.2.1 and 2.2.2 and the Change Requests for
each Sub-Project will specify the prices ("Project Prices"),
reimbursable expense categories and payment schedules. The Development
Parties will only reimburse DBS for those categories of expenses
identified in the Schedules and Change Requests and only to the extent
the expenses are reasonable and documented. LLC, at its free
discretion, can notify DBS that DBS must obtain the approval of only
one LLC Program Manager before incurring an expense above a specified
limit unless agreed otherwise in a Change Request.
9.2 Time and Materials. If this Agreement or a Schedule or a Change
Request does not specify a Project Price or specifies that charges will
be on a time and materials basis, DBS will charge on a time and
materials basis according to the DBS Catalogue of Prices. The current
version of the DBS Catalogue of Prices for the CBOT Group is attached
as Schedule 9.2a. The current German version of the DBS Catalogue of
Prices for the Eurex Group is attached as Schedule 9.2b. The
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prices in Schedule 9.2a are comparable to the prices that DBS charges
the Eurex Group for the services rendered under the Consulting
Agreements and will, when adjusted as provided below, correspond to
general, competitive market rates and will not unduly favor DBS as a
subsidiary of DBAG.
9.2.1 LLC and DBS will commence negotiations on a reasonable
adjustment of the prices in a future Schedule 9.2 (which will
apply to both the CBOT Group and the Eurex Group) on 1
September of each year during the Project. During the term of
this Agreement the rates for personnel should only be adjusted
in accordance with the changes in general rates for comparable
personnel in the information technology industry in the
country where the work is performed, and in any case by no
more than [**] in any year compared to the previous year's
rates. The prices for leased lines, hardware and other non-
personnel items will be adjusted up or down corresponding to
market prices. If LLC and DBS have not agreed on new prices by
31 October, either of them can initiate the Project Problem
procedures. The adjusted prices will apply for the next
calendar year. However, the negotiations commencing on 1
September 2000 will also deal with a [**] adjustment of
Schedule 9.2a with regard to the prices for the period from 1
September 2000 through 31 December 2000. The parties can also
agree on fixed prices for Deliverables. DBS will use
commercially reasonable efforts to perform work which is
charged on a time and materials basis in a cost efficient
manner.
9.2.2 The parties anticipate that DBS will be able to realize
synergies during the course of the Project, for example, by
permitting parts of the System to be shared by members of the
LLC Group or used for the benefit of third parties (e.g.,
joint use of Access Points) or by designing the System or
parts thereof to allow the members of the LLC Group to share
costs. The parties will take resulting cost savings into
account when negotiating adjustments of Schedule 9.2 under
Clause 9.2.1.
9.3 Invoices. DBS will send invoices directly to the Development Parties
for all Project Price payments and will provide a copy of all invoices
to LLC. Unless otherwise directed by the LLC in writing prior to
issuing an invoice, DBS will allocate the charges among the Development
Parties as set forth in Clause 9.6. Each invoice will set forth the
total charges due and the amount of such charges allocated to each
Development Party. Each invoice will be also include supporting
information for the specific line items which are charged. LLC can
conduct an audit of DBS records to the extent reasonably required to
confirm the accuracy of the invoiced amounts (e.g., reviewing
timesheets, travel expense reports).
9.4 VAT, Tax Laws. The Project Prices are net of any Value Added Tax or
withholding taxes. The Development Parties will pay any Value Added Tax
or withholding taxes assessed on payments they make to DBS. Under
current German law and proposed tax legislation, no member of the LLC
Group will be liable for German VAT. If tax laws change after the
execution of this Agreement so that any member of the LLC Group is
required to pay any new non-refundable
-23-
taxes to a tax authority on payments made to DBS under this Agreement,
any member of the LLC Group can require the other parties to commence
negotiations on an adjustment of this Agreement in order to minimize
the tax detriment to the members of the LLC Group. 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 the
parties do not agree on an adjustment within two months of receipt of
the request to commence negotiations, a party for which there would be
a materially detrimental financial impact on itself or one of its
Affiliates can terminate this Agreement by written notice effective at
the end of the calendar month following the month in which the notice
is given. DBS will not charge early termination penalties to LLC or the
Development Parties pursuant to Clause 18.2 or otherwise in this case,
but DBS will charge for its efforts to wind down the work under this
Agreement or transfer the work to one or more of the other parties or
to a third party on a time and materials basis.
Prior to receiving any payment which may be subject to United States
withholding taxes from any party pursuant to this Agreement, DBS shall
confirm in writing that such payment is not subject to withholding
taxes or deliver to such party two original copies of Internal Revenue
Service Form W-8ECI (or any successor forms), accurately completed and
duly executed by DBS, together with any other certificate or statement
of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that DBS is not subject to
deduction or withholding of United States federal income tax with
respect to such payments. DBS hereby agrees, from time to time after
the initial delivery by DBS of such confirmation, forms, certificates
or other evidence whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, to deliver to the respective party
a reconfirmation that such payment are not subject to withholding tax
or two new original copies of Internal Revenue Service Form W-8ECI (or
any successor forms) accurately completed and duly executed by DBS,
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 DBS is not subject to deduction or
withholding of United States federal income tax with respect any such
payments. Notwithstanding Section 9.4, the relevant Project Prices
shall be paid net of any U.S. withholding tax caused by the failure of
DBS to provide the applicable party such forms, certificates or other
evidence.
9.5 Payments. All payments are due within one month of receipt of an
undisputed invoice and are not subject to any deductions for prompt
payment (Skonto). All payments will be made free of bank charges or
other deductions to an account which DBS specifies in writing to LLC.
9.6 Guarantee. The Development Parties, as severally and not jointly liable
debtors only, are responsible for their respective portions of charges
under this Section 9. The Development Parties guarantee, as severally
and not jointly liable debtors only, all of the liabilities of LLC to
DBS under this Agreement; the responsibility of the Development Parties
under this sentence will be allocated 50 % to CBOT, 40% to DBAG and
10% to SWX except with respect to Change Requests relating to Eurex
Release 4.1 and unless the Schedules and/or Change Requests
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provide otherwise or LLC informs DBS otherwise in writing prior to DBS
filing a claim in arbitration. CBOT guarantees all liabilities of any
member of the CBOT Group owed to DBS. DBAG guarantees 80% and SWX
guarantees 20% of any liability owed by a member of the Eurex Group to
DBS, including Change Requests relating to Eurex 4.1 unless otherwise
provided in such Change Requests. These guarantees constitute
independent guarantees (selbstschuldnerische Burgschaft). Unless LLC
and DBS agree otherwise in writing, LLC will not be responsible (either
as debtor or guarantor) for any charges or expenses under this Section
9 of this Agreement.
9.7 Performance Guarantee. At the request of LLC, DBS will provide a bank
guarantee from the Deutsche Bank AG, Frankfurt am Main, in the amount
of [**] for the benefit of the Development Parties as security for the
Performance Credits under Schedule 2.2.1(a). The bank guarantee will be
payable upon first written demand of both of LLC's Program Managers
stating that LLC has not accepted JV Release 1.0 by the date on which
the demand has been submitted due to the presence of a Class 1
Deviation. The demand can only be submitted after the date on which JV
Release 1.0 is scheduled to be placed in production (as of the signing
date of this Agreement, 25 August 2000). The guarantee will be held by
LLC and will be returned to DBS upon Final Acceptance of JV Release
1.0. The Development Parties will bear all bank charges for issuing the
guarantee.
(S) 10
Warranties
10.1 Exclusion. Except as set forth in Clause 10.3, all claims under
warranty (Gewahrleistungsanspruche) against DBS for any defects in a
Deliverable included or used in the Eurex Software that arise after
LLC's Final Acceptance of a Sub-Project are excluded. However, if DBS
has a claim under warranty or for any other reason against any
subcontractor or other third party related to any Deliverable, DBS will
inform LLC about the claim and, at the request of LLC, assign the claim
to LLC or assert the claim for the account of LLC.
10.2 Subsequent Sub-Projects. For other Sub-Projects, LLC and DBS will
negotiate in good faith the terms and conditions of any warranties
(other than those set forth in Clause 10.3) for the Deliverables
provided under such Sub-Project. DBS will also be obligated to assert
warranty claims against subcontractors and third parties as set forth
in the last sentence of Clause 10.1.
10.3 General Warranties. DBS represents and warrants to each member of the
LLC Group that: (i) the Ownership Parties will be the sole and
exclusive owners of all right, title and interest in and to, and free
of all liens, claims or other encumbrances, all Deliverables and the
Client Proprietary Rights; (ii) 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 any member of the LLC Group; and (iii) the
Deliverables and the Client Proprietary Rights do not, and will not,
infringe, misappropriate or otherwise violate any Proprietary Right of
any third party (the exclusive
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remedies for this last warranty (iii) are set forth in Section 14).
These general warranties apply to standard third party software (e.g.,
standard Microsoft products) only to the extent that DBS has
corresponding warranties from the third party.
(S) 11
Limitation of Liability
11.1 Conduct. DBS will be fully liable (including consequential damages) to
each member of the LLC Group to the extent DBS's intentional misconduct
or gross negligence causes or results in any damages or harm to such
member. Each member of the LLC Group will be fully liable (including
consequential damages) to DBS to the extent such member's intentional
misconduct or gross negligence causes or results in any damages or harm
to DBS; the other members of the LLC Group are not liable for such
member's intentional misconduct or gross negligence. However, if LLC
itself commits intentional misconduct or gross negligence, the
Development Parties are liable as several and not joint guarantors
under Clause 9.6. If DBS, on the one hand, or any member of the LLC
Group, 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 as set forth above.
11.2 Limitation of Liability. This Agreement (including Schedules and Change
Requests) contains provisions on liability which apply exclusively in
specified circumstances (e.g., Performance Credits). To the extent that
a specific provision does not exist and a party, as a result of
negligent conduct (including minor negligence) other than gross
negligence, materially breaches a contractual obligation, that party
will be liable for the harm suffered by the other parties, except for
consequential damages.
11.2.1 The total liability of each of DBS, on the one hand, and the
LLC Group taken as a whole, on the other hand, for violations
of its obligations under this Agreement and the Systems
Operations Agreement is limited to [**] per calendar year.
This limit also applies to claims arising under provisions on
liability which apply exclusively in specific circumstances
(e.g. Performance Credits). This Clause 11.2.1 does not apply
to claims under Sections 13, 14 and 16 and Clauses 10.3 and
11.1.
11.2.2 If more than one party asserts claims against DBS in excess of
this limit in any year, the claims will rank pari passu; if
DBS has already paid claims up to this limit in any year, any
additional claims can only be satisfied by an arrangement
among the members of the LLC Group.
11.2.3 If DBS, on the one hand, or any member of the LLC Group, on
the other hand, violates its obligations under this Agreement
and the Systems Operations Agreement to the extent that the
other party would have claims against the violating party in
excess of [**] in any calendar year but for Clause 11.2.1, the
party whose claim is limited by Clause
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11.2.1 can terminate its participation in this Agreement
pursuant to Clause 18.1 within one month after notifying the
other party in writing of the claim and the amount in excess
of [**] ("Claim"). A party which receives notice of the Claim
under this Clause 11.2.3 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 sentence of this Clause 11.2.3 within one week of
receiving the notice of termination; such payment does not
prejudice the rights of any of the parties under the Project
Problem procedures or in arbitration.
11.3 Recourse. Except for claims which DBS may assert directly against the
Development Parties as set forth in Clause 9.6, DBS can assert claims
under this Agreement only against the relevant member of the LLC Group.
Any party can assert claims directly against DBS in accordance with
this Agreement. DBS hereby consents to the assignment of any claim LLC
may have against DBS on behalf of a member of the LLC Group and such
member of the LLC Group may enforce such claim directly, in its own
name and on its own behalf, against DBS. The preceding sentences in
this Clause 11.3 do not, however, prevent any party from applying for
preliminary injunctive relief directly against any other party.
11.4 Insurance. The limits on liability in Clause 11.2 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 Clause 11.2. At the request of LLC,
DBS will have members in the LLC Group named as additional
beneficiaries under existing insurance policies; LLC will bear any
additional costs. DBS will conclude future insurance policies giving
coverage in excess of the limits in Clause 11.2 upon receiving
corresponding instructions from LLC and an undertaking by LLC or the
Development Parties to reimburse DBS for the corresponding insurance
premiums. LLC can determine the insurer, the beneficiaries and other
aspects of the insurance policies.
(S) 12
Personnel
12.1 Qualifications. DBS will only assign personnel to the Project who are
suitably qualified for the performance of DBS's obligations under the
Project. LLC will only assign personnel to the Project who have
sufficient knowledge of the aspects of the relevant business,
functional requirements, practices and areas of expertise in order to
provide efficient cooperation with DBS in performing the work under the
Change Requests.
12.2 Key Personnel. Set forth in Schedule 12.2 is a list of each party's
"Key Personnel". No party will remove its Key Personnel from the
Project without obtaining the prior written consent of the other party,
which consent will not be unreasonably withheld. If one of the Key
Personnel leaves the employment of a party or is otherwise prevented
from continuing work on the Project, the party will replace the Key
Person without undue delay with another individual who is appropriately
qualified
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upon receiving the consent of the other party, which consent will not
be unreasonably withheld. For each Sub-Project outside of Schedules
2.2.1 and 2.2.2, DBS and LLC will provide a list of Key Personnel in an
appropriate Schedule.
12.3 Transfer. DBS and LLC can require at any time that an individual
assigned to the Project be transferred to another part of the Project
or be removed from the Project if such request is based on plausible
reasons and not purely arbitrary. In the case of Key Personnel, 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; in the case of Key Personnel
the evidence must be attached to the demand. The other party must
comply with the request within two weeks and provide a suitable
replacement without undue delay or deliver a Problem Report to the
demanding party.
(S) 13
Proprietary Rights
13.1 Ownership. Eurex 4.0 will be the basis for the development of JV
Release 1.0.
As between DBS, on the one hand, and the Ownership Parties, on the
other hand, the Ownership Parties will own all rights, title and
interest in and to all Deliverables, including the Eurex Software and,
in accordance with Clauses 5.1 and 5.2, Tools and all rights related
thereto (the "Client Proprietary Rights"). As among the Ownership
Parties, ownership of the Client Proprietary Rights will be determined
as set forth in the Alliance Agreement and the Software License
Agreement.
13.2 Assignment. DBS will cause its Freelancers and subcontractors to issue
letters corresponding to Schedule 13.2 for the benefit of the Ownership
Parties. DBS hereby assigns to the Ownership Parties all of DBS's
rights in the Client Proprietary Rights as follows:
The Ownership Parties will each individually own, and have all title in
and to, the Client Proprietary Rights. DBS, at the Ownership Parties'
expense, will take such steps as are reasonably required by the
Ownership Parties to vest and perfect such Client Proprietary Rights in
the Ownership Parties or their designees. DBS hereby grants to the
Ownership Parties the irrevocable, perpetual, royalty free, world wide,
exclusive and transferable right in the Client Proprietary Rights to
use the same individually for all purposes in any way and form and
without temporal or geographic limitation.
Without limiting the generality of the foregoing, DBS hereby grants to
each of the Ownership Parties the irrevocable, exclusive and
transferable right to copy the Client Proprietary Rights, to publish,
license and distribute the Client Proprietary Rights, or any portions
thereof, under any name and to adapt them, to create derivative works
of the Client Proprietary Rights, to translate the Client Proprietary
Rights and to publish such adaptations, derivative works and/or
translations
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of the Client Proprietary Rights, to transmit or broadcast and make
available the Client Proprietary Rights in any interactive way and to
rent the Client Proprietary Rights to third parties. DBS agrees that
the respective Ownership Parties are regarded as the makers of any of
their respective databases (i.e., the databases relating to the
Ownership Parties' respective markets and members) and that the
Ownership Parties own all economic exploitation rights and that each of
them separately may reproduce, distribute and communicate to the public
any such database in part or in total. The Ownership Parties are
entitled to grant licenses in all of the above-mentioned Rights.
As regards the moral rights in the Client Proprietary Rights, DBS
acknowledges that it is responsible for assuring that the Ownership
Parties are entitled to (i) the undisturbed use of the Client
Proprietary Rights and (ii) in particular and without limitation
hereto, to exercise (on a co-ownership basis) for the relevant author
the right of dissemination, the right of recognition of authorship, the
right to prevent distortions of the work, the right to decide whether
the work should bear the author's designation, the right of access to
copies of the work and the revocation rights for the Client Proprietary
Rights. If in the context of the undisturbed use of these rights by the
Ownership Parties a dispute arises between an author, on the one side,
and the Ownership Parties, on the other side, then DBS will instruct
its subcontractors to make sure that the author will exercise its moral
rights as directed by the Ownership Parties.
Nothing herein will preclude any Ownership Party from developing for
itself or for others materials which are derived from those produced in
creating the Client Proprietary Rights.
13.3 DBS Rights. DBS will be the sole and original owner of, and will have
the sole and exclusive title in and to: (i) the Pre-Existing
Proprietary Rights, and (ii) any Proprietary Rights that DBS develops
after the Effective Date that DBS can clearly establish are outside the
scope of any work performed under this Agreement and that are not
necessary for the operation or maintenance of the Eurex Software
(collectively, the "DBS Proprietary Rights"). Except to the extent DBS
obtains LLC's prior written approval, DBS may not include or use any
Pre-Existing Proprietary Rights in any Deliverable or Sub-Project. DBS
acknowledges and agrees that it is precluded from developing for itself
or for others materials that are derived from any Deliverable or
Sub-Project, and DBS disclaims any Rights to the Eurex Software.
However, subject to the confidentiality obligations of DBS to the LLC
Group hereunder, this restriction will not preclude DBS from using
general concepts, know-how and ideas used or developed in the course of
performing its obligations under this Agreement.
13.4 Source Code; Documentation. To the extent included or used in any
Deliverable developed or provided by DBS hereunder, DBS will deliver to
LLC and each Ownership Party the source code version of any computer
software, and documentation sufficient to enable the use, operation,
modification and maintenance of such computer software. The source code
will be delivered by providing each recipient with a CD-ROM or
equivalent storage medium on which the source code
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is stored. The documentation will be delivered by providing on a CD-ROM
or equivalent storage medium on which the source code is stored.
(S) 14
Infringement of Third Party Rights
14.1 By DBS. DBS will indemnify, defend and hold each of the members of LLC
Group harmless for all losses, damages, expenses and costs (excluding
the consequential damages of the other parties to this Agreement except
in the case of intentional misconduct or gross negligence on the part
of DBS) related to or arising from all claims asserted by third parties
against any one or more members of the LLC Group relating to the System
or operation of the System, any Deliverables, any Client Proprietary
Rights or anything else developed by or for DBS under this Agreement in
which the third parties allege violations of intellectual property
rights or of similar rights (e.g., under laws against unfair
competition).
14.2 Notice. Each member of the LLC Group will inform DBS without undue
delay when such claim is asserted against it. DBS will also indemnify
each member of the LLC Group against the costs of asserting such
member's rights relating to such claims if such member coordinates
assertion of rights with DBS. DBS will select, at its own expense,
legal counsel reasonably acceptable to the indemnified party for any
proceedings, although the indemnified party is permitted to have, at
its own expense, legal counsel of its choice also participate in the
proceedings.
14.3 Settlement. A member of the LLC Group is not permitted to settle any
claims of third parties covered by Clause 14.1 so long as DBS fully
complies with its obligations under the above provisions, unless such
settlement includes a release of DBS from liability under the claim
that is the basis of the proceeding.
14.4 Right to Use. If a member of the LLC Group is prohibited in proceedings
about intellectual property rights or similar rights directed against
it from using the System or operating, licensing or sublicensing the
System, the Deliverables and Client Proprietary Rights or anything else
developed by or for DBS under this Agreement, or if such a prohibition
is probable in their reasonable estimation, DBS, at its own cost, will
obtain the right for such party or parties to continue to use the
affected materials or replace them with another product which is
equivalent in all aspects or modify the affected materials in such a
manner that the violation of the intellectual property right or similar
right no longer exists. This Agreement will then apply to the new or
modified products.
14.5 Texas Case. Clause 5.1.2 of the Software License Agreement applies
mutatis mutandis. If the decision in the Texas Case is in favor of the
plaintiff, the parties will use good faith efforts to modify the
Project so that the Texas Case does not affect the Project. LLC or any
Ownership Party can also suspend this Agreement or terminate this
Agreement pursuant to Clause 18.1.
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(S) 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, and (v) all information that is
Confidential Information as defined in Section 7.3 of the Software
License Agreement. 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 Clause 15.1, (ii) which is
received from a third party provided that the third party is not bound
by an obligation of confidentiality with respect to such information,
or (iii) which was legally in a party's possession without obligations
of confidentiality prior to such information being furnished as
Confidential Information.
15.2 Use. DBS, on the one hand, and the members of the LLC Group, on the
other hand, agree that all Confidential Information will be used only
for the purpose of evaluating and completing the transactions and
business objectives contemplated herein, in the Systems Operations
Agreement and in the various agreements among the members of the LLC
Group. 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.
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
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their obligation to protect it as confidential and are bound by
confidentiality undertakings consistent with this Section 15.
15.4 Return/Destruction. Except for Confidential Information of DBS that the
LLC Group is intended to retain under the terms of this Agreement, the
Systems Operations Agreement and the various agreements among the
members of the LLC Group, if this Agreement is terminated for any
reason, the receiving parties of each item of Confidential Information,
including documents, contracts, records or properties, will return it
to the disclosing party thereof or, in the receiving party's
discretion, destroy it and provide a certification to the disclosing
party that all such Confidential Information has been returned or
destroyed immediately after termination, except to the extent that
retention of any Confidential Information is expressly permitted by any
other written agreement among the parties or their Affiliates. The
provisions of this Section 15 will survive the termination of this
Agreement.
15.5 Scope. This Section 15 will not apply to information disclosed by a
member of the CBOT Group or the Eurex Group to a member of the other
group; such information is covered by clauses on confidentiality in the
Software License Agreement and the Alliance Agreement.
(S) 16
General Indemnification
16.1 By Members of LLC Group. Each member of the LLC Group will hold DBS
harmless from any claim asserted against DBS by such other party's
respective personnel or subcontractors for personal injury or damage to
property incurred while such personnel are at DBS'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 DBS
or its Affiliate. Each member of the LLC Group will also hold DBS
harmless from claims asserted against DBS by third parties resulting
from intentional misconduct or negligence of such member's personnel;
the members of the LLC Group are not liable for another member's
personnel.
16.2 By DBS. DBS will hold the other parties and their Affiliates harmless
from any claim asserted against them by personnel of DBS or its
subcontractors for personal injury or damage to property incurred while
such personnel are at the other parties' or their Affiliates'
facilities unless such harm was the result of intentional misconduct or
gross negligence on the part of the other party or its Affiliate. DBS
will also hold the other parties and their Affiliates harmless from
claims asserted against them by other persons resulting from
intentional misconduct or negligence of DBS's personnel.
16.3 Notification. DBS and LLC 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
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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 16 unless such
settlement includes a release of indemnifying party from liability
under the claim that is the basis of the proceeding.
16.4 Risk Management. Each member of the LLC Group will use commercially
reasonable efforts to reduce the risk that a third party will assert
claims against any such member or DBS resulting from the use of the
Eurex Software by such member.
(S) 17
Public Notices
17.1 Press Releases. 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 Project. The parties will cooperate in drafting
press releases concerning the Project.
17.2 Disputes. 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 Project Problem in which one party allocates blame for the
Project Problem to another party requires the written approval of LLC
and DBS, which consent will not be unreasonably withheld.
17.3 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.
(S) 18
Termination, Term
18.1 Termination for Cause (Kundigung aus wichtigem ▇▇▇▇▇). DBS, on the one
hand, or any member of the LLC Group, on the other hand, may terminate
this Agreement with regard to the relationship with the other party, if
the other party after receiving a written reminder (Mahnung) setting a
reasonable deadline for compliance, has not complied with terms of an
agreement resolving a Project Problem within two weeks of conclusion of
a Problem Report procedure relating to such Project Problem or within
two weeks of the Escalation Committee failing to resolve a Problem
Report. 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). If a member of the LLC Group terminates
this Agreement or DBS terminates this Agreement as to a member of the
LLC Group under the preceding two sentences, any other member of the
LLC Group can terminate this Agreement with regard to their
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respective participations by giving written notice to DBS within two
weeks after receiving written notice that another member of the LLC
Group or DBS has terminated this Agreement. If this Agreement remains
in effect with regard to only some of the members of the LLC Group,
this Agreement will be adjusted to the changed circumstances. This
Clause 18.1 does not limit the rights of the parties to terminate this
Agreement for cause (Kundigung aus wichtigem ▇▇▇▇▇) generally available
under German law.
18.2 Termination for Convenience. A Development Party which has given an
instruction to DBS to perform a Sub-Project for itself can terminate a
Sub-Project which it authorized pursuant to Clause 3.2 without cause
with immediate effect. LLC is entitled to terminate this Agreement
without cause with immediate effect. Unless LLC provides written notice
to DBS stating otherwise, termination of this Agreement under this
Clause 18.2 will also terminate any Sub-Project in existence as of such
termination date. As DBS's sole remedy for LLC's termination of this
Agreement or a Development Party's termination under this Clause 18.2,
DBS will be entitled to payment under each of the following categories:
18.2.1 DBS is entitled to payment on a time and materials basis for
all work performed up to the effective date of termination.
DBS will transfer any partial work product for which the
remuneration is paid to the corresponding member(s) of the LLC
Group for whom DBS was to produce the work product.
18.2.2 For a Sub-Project for which a fixed price has been agreed, DBS
will be entitled to payment as compensation for the loss of
future earnings as follows:
(i) If the parties have agreed on specific payments which
will apply in the event of termination for
convenience, those payments will become due on the
effective date of the notice of termination.
(ii) If the parties have not agreed to specific payments
which will apply in the event of termination for
convenience, DBS will be entitled to compensation
under (S) 649 German Civil Code.
18.2.3 DBS will be entitled to payment on a time and materials basis
for the work performed after termination for the purpose of
winding down.
18.3 Termination of other Agreements. In the event of termination of the
Alliance Agreement or the Software License Agreement or the Systems
Operations Agreement, LLC, the Eurex Entities, or any other party may,
in its free discretion, terminate its participation in this Agreement
immediately upon providing written notice to DBS; Clause 18.2 will
apply. If a party has terminated this Agreement due to termination of
the Alliance Agreement or the Software License Agreement or the Systems
Operations Agreement for cause (Kundigung aus wichtigem ▇▇▇▇▇) based on
breach by a member of the Eurex Group, that party can satisfy its
obligations (Erfullungsstatt) to make
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payment to DBS under Clause 18.2 of this Agreement by assigning to DBS
that party's claims against the breaching member of the Eurex Group for
damages corresponding to the amounts owed to DBS under Clause 18.2, if
any. At the request of an Development Party, DBS will enter into
negotiations on a separate follow-up agreement on terms and conditions
similar to those in this Agreement if this Agreement has terminated due
to termination of the Alliance Agreement.
18.4 Continuation. If any work under Schedules 2.2.1 and 2.2.2 or Change
Requests continues past the end of this Agreement, this Agreement will
continue to apply to such work until it has been completed.
18.5 Post-Termination Cooperation. If this Agreement is terminated for any
reason, DBS will follow the reasonable instructions of a Development
Party for the purpose of winding down work under this Agreement or
transferring the work to one or more subsequent contractors. DBS will
charge for such services on a time and materials basis, monthly in
arrears. The provisions in Clause 18.5.1 through 18.5.4 of the Systems
Operations Agreement apply mutatis mutandis.
18.6 Term. Unless earlier terminated as set forth in this Section 18, the
term of this Agreement will remain in effect so long as the Systems
Operations Agreement is in effect.
(S) 19
General Provisions
19.1 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 given 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. Any notice, request or consent by DBS must be sent
to LLC, and any notice, request or consent by the other parties must be
transmitted by LLC to DBS. DBS, on the one hand, and the parties other
than LLC, on the other hand, can also submit a notice, request or
consent directly to each other if they are entitled to assert a claim
directly against the other party; any such notices must be copied to
LLC.
19.2 Entire Agreement, Amendments. This Agreement (together with the Systems
Operations Agreement) constitutes the entire agreement between DBS, on
the one hand, and the LLC Group, on the other hand, and supersedes the
Interim Agreement; there are no oral or written side agreements.
Amendments or supplements to this Agreement must be in writing to be
effective. This also applies to an amendment to this Clause on written
form.
-35-
19.3 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.
19.4 Assignment. No party can assign this Agreement without obtaining the
prior written consent of the other parties; provided, however, that for
the avoidance of doubt this sentence does not restrict the rights of
the Ownership Parties to transfer Client Proprietary Rights. The
parties will grant consent to an assignment of rights or obligations by
a party to an Affiliate if the assigning party remains liable for any
assigned obligations as a jointly and severally liable guarantor
(selbstschuldnerische Burgschaft) with the assignee; however, a party
can refuse consent if the assignment would have a materially
detrimental impact on the party's interests. Notwithstanding the
foregoing:
19.4.1 Any member of the LLC Group may assign this Agreement
without the consent of the other parties to this only to a
person to whom the Alliance Agreement has been assigned by
such member in accordance and in compliance with the terms
of Section 13.7 of the Alliance Agreement. The assigning
member, as long as it continues to exist, will remain liable
as a jointly and severally liable guarantor
(selbstschuldnerische Burgschaft) with the assignee unless
and until agreed otherwise by DBS. For the avoidance of
doubt the restructuring plan described in the May 16th 2000
"Restructuring Report" of the CBOT constitutes a
Reorganization, as that term is defined in the Alliance
Agreement.
19.4.2 LLC may assign this Agreement to one or more Network
Entities.
19.4.3 The parties hereby grant their consent to DBS assigning some
of the work under this Agreement and the corresponding
rights and obligations to one or more of its Affiliates in
the United States pursuant to the second sentence in the
first paragraph of this Clause 19.4; however, DBS will
remain liable for assigned obligations as a guarantor of
performance and payment. The Affiliate(s) will then invoice
the members of the LLC Group directly for any work the
Affiliate(s) perform.
19.5 Applicable Law. Except for the ownership of Client Proprietary Rights
as provided in Section 13, which will be governed by New York law, this
Agreement is subject to the laws of the Federal Republic of Germany
(excluding the laws under the UN Treaty on the International Sale of
Goods).
19.6 Language. English is the official language of this Agreement. Any
notice, request or consent must be in English.
-36-
19.7 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.
19.8 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.
19.9 Arbitration Procedure. Except with regard to actions seeking temporary
or permanent injunctive relief, any dispute arising under this
Agreement between or among any parties to this Agreement will be
finally settled by arbitration in accordance with the arbitration rules
of the United Nations Convention on International Trade Law (the
"UNCITRAL Rules"). Prior to commencing arbitration, the parties must
exhaust the Project Problem procedures set forth in Section 7.
19.9.1 The arbitration will be conducted by three (3) arbitrators.
The arbitrators must be familiar with business and legal
matters similar to those that are the subject of this
Agreement and the subject of the dispute. If there are only
two parties to the arbitration proceedings, each party will
appoint one arbitrator, obtain its appointee's acceptance of
such appointment, and deliver written notification of such
appointment and acceptance to the other party within thirty
(30) days after delivery of a formal request for arbitration
from one party to the other party. If a party fails to appoint
an arbitrator or deliver notification of such appointment to
the other party within this time period, upon request of
either party, such arbitrator will instead be appointed by the
London Court of International Arbitration (the "Appointing
Authority") within thirty (30) days of receiving such request.
The two arbitrators appointed in accordance with the above
provisions will appoint a third arbitrator, obtain the
appointee's acceptance of such appointment and notify the
parties in writing of such appointment and acceptance within
thirty (30) days of such appointment. If the first two
appointed arbitrators fail to appoint a third arbitrator or to
notify the parties of that appointment within this time
period, then, upon request of either party, the third
arbitrator will be appointed by the Appointing Authority
within thirty days of receiving such request. The third
arbitrator will serve as Chairman of the tribunal. If there
are more than two parties to the arbitration proceedings, then
all three arbitrators will be appointed by the Appointing
Authority within thirty days or receiving a request from any
of the parties. No arbitrator appointed by the Appointing
Authority may be a director, officer, employee, counsel or
agent of any party, and without the consent of all of the
parties to the arbitration, may not be a resident of the
United States, Germany or Switzerland. To the extent that
arbitration procedures are not defined herein, all procedures
relating to arbitration, including but not limited to notice
thereof, deadlines and discovery will be pursuant to the
UNCITRAL Rules as enacted in the forum.
19.9.2 The place of arbitration will be London unless the parties to
the arbitration agree otherwise. The proceedings will be
conducted in the English language exclusively.
-37-
19.9.3 The award rendered by the arbitrators will be final and
binding on the parties. Judgment on the award may be entered
in any court of competent jurisdiction.
19.9.4 The parties acknowledge that irreparable damage may occur in
the event of breach of any of the terms of this Agreement.
19.9.5 If an arbitration under this Agreement coincides with an
arbitrable claim under the Systems Operations Agreement, both
matters must be asserted in the same arbitration proceedings.
19.10 Injunctive Relief. The parties do not intend to deprive any court with
jurisdiction of its ability to issue a preliminary injunction,
attachment or other form of provisional remedy, and a request for such
provisional remedies by a party to a court will not be deemed a waiver
or violation of the parties' agreement to arbitrate.
Deutsche Borse Aktiengesellschaft Swiss Stock Exchange
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ Illegible
------------------------------------- -----------------------------
Date: July 20, 2000 Date: 20.7.2000
------------------------------------ ----------------------------
-38-
Board of Trade of the City of Chicago Ceres Trading Limited Partnership, by
Board of Trade of the City of Chicago,
its managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Date: _______________________________ Date: _______________________________
Ceres Alliance L.L.C. Eurex Frankfurt AG
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
Date: _______________________________ Date: July 20, 2000
-------------------------------
Eurex Zurich AG Eurex Clearing AG
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
Date: July 20, 2000 Date: July 20, 2000
------------------------------- -------------------------------
CBOT/EUREX ALLIANCE, L.L.C. Deutsche Borse Systems AG
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ Illegible
-------------------------------- --------------------------------
Date: July 20, 2000 Date: _______________________________
-------------------------------
-1-
Confidential Materials Omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions
Schedule 1.1
Glossary of Defined Terms
"Acceptance" means, with respect to a Sub-Project, acceptance
of such Sub-Project as set forth in Clause 8.4.
"Acceptance Form" means the Acceptance Form described in Clause
8.4.3.
"Access Point" is defined in point 3.1 of Schedule 9.2.
"Affiliate" is defined in clause 1.1 of the Software License
Agreement. For purposes of this Agreement, DBS
will be deemed not to be an Affiliate of any
member of the Eurex Group.
"Agreement" is defined in the Heading.
"Alliance Agreement" is defined in the Recitals, Clause D.
"Application Maintenance" means the Application Maintenance described in
Clause 2.2.2.
"Appointing Authority" is defined in Clause 19.9.1.
"CBOT" is defined in the initial paragraph of this
Agreement.
"CBOT Group" has the meaning set forth in Article I of the
Alliance Agreement.
"Ceres" is defined in the initial paragraph of this
Agreement.
"Ceres Alliance" is defined in the initial paragraph of this
Agreement.
"Change Request" is defined in Clause 2.5.
Claim is defined in Clause 11.2.3.
"Class 1 Deviation" Is defined in Clause 8.4.1.
"Class 2 Deviation" Is defined in Clause 8.4.1.
"Class 3 Deviation" is defined in Clause 8.4.1.
"Client Proprietary Rights" is defined in Clause 13.1.
"Confidential Information" is defined in Clause 15.1.
"Consulting Agreements" is defined in the Recitals, Clause C.
"DBAG" is defined in the initial paragraph of this
Agreement.
-2-
"DBS" is defined in the initial paragraph of this
Agreement.
"DBS Catalogue of Prices" is defined in Clause 9.2.
"DBS Proprietary Rights" is defined in Clause 13.3.
"Deficiency Report" means the Deficiency Report described in Clause
8.1.
"Deliverables" is defined in Clause 2.4.
"Detailed Definition" is defined in Clause 2.4.
"Development Agreement" has the meaning set forth in Article I of the
Alliance Agreement.
"Development Parties" is defined in Article I of the Alliance Agreement.
"Deviations" is defined in Clause 8.1.
"Effective Date" is defined in the initial paragraph of this
Agreement.
"Escalation Committee" is defined in Clause 3.7.
"Eurex Software" means the Programs and any Modifications
including, without limitation, Eurex 2.0, Eurex
3.0, Eurex 4.0, Eurex 4.1, JV Release 1.0 and any
future releases or versions thereof.
"Eurex 2.0" is defined in the Recitals, Clause A.
"Eurex 3.0" is defined in the Recitals, Clause B.
"Eurex 3.1" is defined in the Recitals, Clause B.
"Eurex 4.0" is defined in the Recitals, Clause E.
"Eurex 4.1" is defined in the Recitals, Clause G.
"Eurex Clearing" is defined in the initial paragraph of this
Agreement.
"Eurex Entities" is defined in the Recitals, Clause F.
"Eurex Frankfurt" is defined in the initial paragraph of this
Agreement.
"Eurex Group" has the meaning set forth in Article I of the
Alliance Agreement. For purposes of this
Agreement, the Eurex Group will be deemed not to
include DBS.
"Eurex Zurich" is defined in the initial paragraph of this
Agreement.
"Exchanges" has the meaning set forth in Article I of the
Alliance Agreement.
-3-
"Facilities" is defined in Clause 3.4.5.
"Fine Specifications" is defined in Clause 2.2.1.
"Freelancers" is defined in Clause 3.8.
"Future Development Entity" has the meaning set forth in Article I of the
Alliance Agreement.
"Group" has the meaning set forth in Article I of the
Alliance Agreement.
"Initial Software Research means the Initial Software Research and
and Development" Development described in Clause 2.2.1.
"Interim Agreement" is defined in the Recitals, Clause E.
"JV Release 1.0" is defined in the Recitals, Clause E.
"Key Personnel" is defined in Clause 12.2.
"LLC Group" means LLC and the members of the Eurex Group and
CBOT Group. Each party in the LLC Group shall be
referred to as a member.
"LLC" has the meaning set forth in Article I of the
Alliance Agreement.
"Material Tools" is defined in Clause 5.1 and includes third party
tools and tools developed, owned and
commercialized by DBS
"Modifications" has the meaning set forth in Clause 7.1(b) of the
Software License Agreement.
"Network" has the meaning set forth in Article I of the
Alliance Agreement.
"Network Entities" has the meaning set forth in Article I of the
Alliance Agreement.
"Ownership Parties" are Licensors and Licensee as defined in the
Software License Agreement or their permitted
assignees.
"Pre-Existing Proprietary means any Proprietary Right that DBS owned prior
Rights" to the Effective Date and that is not related to
or derived from the Eurex Software, the System or
the Network.
"Problem Report" is defined in Clause 7.3.
"Production Environment" means the IT environment intended for simulation
which will subsequently be further developed for
actual production business.
"Program Manager" means the Program Manager described in Clause 3.5.
"Project" is defined in Clause 2.1.
"Project Prices" is defined in Clause 9.1.
"Project Problem" is defined in Clause 7.1.
-4-
"Programs" has the meaning set forth in the clause 1.12 of
the Software License Agreement.
"Project Manager" means the Project Manager described in Clause 3.5.
"Project Report" is defined in Clause 3.3.
"Proprietary Rights" has the meaning set forth in Clause 1.14 of the
Software License Agreement. For purposes of this
Agreement, the clause beginning with "including"
and ending with "related thereto" at the end of
such clause 1.14 is replaced with the following:
"including any Confidential Information included
therein or related thereto."
"Release 3.0 Modifications" has the meaning set forth in Clause 1.15 of the
Software Development Agreement.
"Restructuring Report" is defined in Clause 19.4.1.
"Rights" has the meaning set forth in Clause 7.1(b) of the
Software License Agreement.
"Service Agreements" is defined in the Recitals, Clause F.
"Services" is defined in Clause 2.4.
"Services Completion Notice" means the Services Completion Notice described in
Clause 8.5.2.
"Sign-Off" means, with respect to a Deliverable, sign off of
such Deliverable as set forth in Clause 8.1;
provided, however, that no Deliverable will be
deemed accepted by LLC until the Final Acceptance.
"Sign-Off Form" means the Sign-Off Form described in Clause 8.1.
"Software License Agreement" is defined in the Recitals, Clause A.
"Steering Committee" is defined in Clause 3.6.
"Sub-Project" is defined in Clause 2.1.
"Sub-Project Acceptance" means Final Acceptance of a Sub-Project.
"SWX" is defined in the initial paragraph of this
Agreement.
"System" has the meaning set forth in Article I of the
Alliance Agreement.
"Systems Operations is defined in the Recitals, Clause H.
Agreement"
"Tasks" is defined in Clause 2.4.
-5-
"Test Procedures" are any specific procedures set forth in Schedule
2.2.1 or applicable Change Requests.
"Texas Case" is defined in Clause 14.5.
"Tools" is defined in Clause 5.1.
"UNCITRAL Rules" is defined in Clause 19.8.
"Value Added Tax (VAT)" means the Value Added Tax or VAT (Umsatzsteuer)
described in Clause 9.4.
- 1 -
SCHEDULE 1.4 Eurex Release 4.1 Change Requests as of 18 July 2000
-----------------------------------------------------------------------------------------------------------------------------------
Impact on
----------------------------
Estimated Actual
Affected Current Cost Effort Est. Date of Delivery
No Name Release Decision Status in EUR in EUR (wd) Signature by
-----------------------------------------------------------------------------------------------------------------------------------
000 P3-00853 JAVA [* *] 4.1 Steering Committee Accepted [* *] [* *] [* *] 6.12.1999 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
000 P0-00928 R4.1: Fine
Specifications 4.1 Steering Committee Accepted [* *] [* *] [* *] 2.2.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
000 P2-00928 R4.1: Implementation 4.1 Steering Committee Accepted [* *] [* *] [* *] 15.4.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
001 Implementation of new [* *] for
the [* *] Facility 4.1 Steering Committee Accepted [* *] [* *] [* *] 15.03.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
002 Design Product-Specific
Trading [* *] 4.1 Steering Committee Closed [* *] [* *] [* *] 15.03.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
003 Print Functionality in [* *] 4.1 Steering Committee Accepted [* *] [* *] [* *] 29.03.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
006 Trading [* *] - Implementation
and Test 4.1 Steering Committee Accepted [* *] [* *] [* *] 12.04.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
007 Exercise Overview - Entry of
Expiration Month 4.1 Steering Committee Accepted [* *] [* *] [* *] 12.04.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
008 Enhancement [* *] GUI Steering Committee Accepted [* *] [* *] [* *] 12.04.2000 27.11.2000
-----------------------------------------------------------------------------------------------------------------------------------
009 [* *] Concept GUI Steering Committee Accepted [* *] [* *] [* *] 12.04.2000 27.11.2000
-----------------------------------------------------------------------------------------------------------------------------------
013 Front-end [* *] Check-Tool 4.1 Program Management Accepted [* *] [* *] [* *] 10.05.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
014 Common Code for [* *] 4.1 Program Management Accepted [* *] [* *] [* *] 10.05.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
016 Effort for separate roll-out
of [* *] 4.1 Steering Committee Approved [* *] [* *] [* *] 24.05.2000 27.11.2000
-----------------------------------------------------------------------------------------------------------------------------------
017 Enhance [* *] Handling (SIR 9070) 4.1 Steering Committee Approved [* *] [* *] [* *] 10.05.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
018 Windows 2000 [* *] Study 4.1 Program Management Accepted [* *] [* *] [* *] 24.05.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
019 [* *] Limit Increase 4.1 Steering Committee Approved [* *] [* *] [* *] 21.06.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
020 [* *] Application for Eurex R 4.1 4.1 Steering Committee Approved [* *] [* *] [* *] 21.06.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
021 Enhancement of [* *] Algorithm 4.1 Steering Committee Approved [* *] [* *] [* *] 21.06.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
022 Update [* *] Training
Documentation 4.1 Steering Committee Approved [* *] [* *] [* *] 05.07.2000 30.10.2000
-----------------------------------------------------------------------------------------------------------------------------------
023 Enhance [* *] Market Handling 4.1 Steering Committee Approved [* *] [* *] [* *] 05.07.2000 30.10.2000
===================================================================================================================================
Total [* *] [* *] [* *]
-----------------------------------------------------------------------------------------------------------------------------------
-1-
INSERT SCHEDULE 2.2.1 (Fine Specifications of JV Release 1.0)
-1-
Schedule 2.2.1
Payment Schedule for JV Release 1.0 including Change Requests through 18 July
2000
all numbers in Euro Actuals Actuals Actuals Actuals Actuals Actuals Plan
------------------------------------------------------------------------------------------------------------------------------------
Project Total in 1999 Total in 2000 Jan 00 Feb 00 Mrz 00 Apr 00 Mai 00 Jun 00 Jul 00 Total cost
------------------------------------------------------------------------------------------------------------------------------------
Master Software Development [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Software Development [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
AC part [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Infrastructure for AC [**] [**] [**] [**] [**] [**] [**] [**] [**]
DBS part [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Travel Expenses [**] [**] [**] [**] [**] [**] [**] [**] [**]
Project Management [**] [**] [**] [**] [**] [**] [**] [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
-1-
1. "AC Part" is fixed price to realize the work defined in this Schedule
2.2.1.
2. "Infrastructure for AC" is infrastructure which DBS provides to
▇▇▇▇▇▇▇▇ Consulting personnel for the work covered by the AC Part. The
price of "Infrastructure for AC" is equal to [**], and the estimated
amounts set forth above are based on the assumption that AC will devote
[**] to the AC Part. The amounts set forth above which are not
identified as actual costs are estimates, and establish no payment
obligation of any kind. The actual charges could be higher or lower
depending on the number of mandays actually devoted by AC to the AC
Part.
3. "DBS Part" and "Project Management" are the costs for DBS' own
personnel and other resources. These costs will be charged on a time
and materials basis at the unit prices set forth in Section 2 of
Schedule 9.2. The amounts set forth above which are not identified as
actual costs are estimates based on an assumption of 18 eight-hour
mandays per month, and establish no payment obligation of any kind. The
actual charges could be higher or lower depending on the number of
mandays actually devoted by DBS to the DBS Part or Project Management.
Project Management charges through July 8, 2000 are divided equally
between the Master Software Development Agreement and the System
Operations Agreement. After July 8, 2000, Project Management charges
will be covered by the Systems Operations Agreement.
4. "Travel Expenses" are estimated unless indicated otherwise, will be
charged as incurred and will be the actual travel costs incurred by DBS
personnel and subcontractors. Any expenses in excess of the estimates
contained above will be subject to the prior approval of Ceres. The
means of travel and method of accounting for travel (e.g., class for
air travel, documentation) will be in accordance with DBS's standard
travel policies, which are identical to the travel policies of Deutsche
Borse AG. Estimates for travel should distinguish between software
development and operations
5. Ceres is responsible for all payments under this Schedule. DBAG and SWX
have elected not to use any of the Modifications contained in JV
Release 1.0, and accordingly have no financial responsibility for and
no right to use or exploit those Modifications (notwithstanding any
provision of the Master Software Development Agreement).
-1-
JV Release 1.0 Change Requests as of 18 July 2000
-----------------------------------------------------------------------------------------------------------------------------------
N' Name Affected Decision Impact on
Release ----------------------------------------
Current Estimated Cost Actual Effort Est. Date of
Status in EUR in EUR (wd) Signature
-----------------------------------------------------------------------------------------------------------------------------------
1 [* *] 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
2 [* *] Settlement Price Calculation Algorithm 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
3 Screens [* *] 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
4 Market Supervision Tool [* *] 1.0 MOC Open
-----------------------------------------------------------------------------------------------------------------------------------
5 Extend [* *] Interface with [* *] Record 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
6 Request for additional file - [* *] file 1.0 MOC Approved [* *] 25.08.2000
at end of day via FTP.
-----------------------------------------------------------------------------------------------------------------------------------
7 Change to [* *] Specifications to include 1.0 MOC Open
processing of [* *] as considered out of
scope during preparation of Fine Specs.
-----------------------------------------------------------------------------------------------------------------------------------
13 Remove [* *] Support 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
16 Transaction Screen Enablement 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
17 Access to [* *] Data on CBOT Trading Floor 1.0 MOC Open
-----------------------------------------------------------------------------------------------------------------------------------
18 Fee [* *] Separation 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
20 Remove [* *] from Scope of JVR1 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
21 Logo and Name Change 1.0 MOC Approved [* *] 25.08.2000
-----------------------------------------------------------------------------------------------------------------------------------
26 Add Support for [* *] 1.0 MOC Open
-----------------------------------------------------------------------------------------------------------------------------------
27 Reduced [* *] 1.0 MOC Open
-----------------------------------------------------------------------------------------------------------------------------------
-1-
Schedule 2.2.1a
Performance Credits
Initial Software Research and Development
Under the time schedule for delivery and implementation of JV Release 1.0
applicable on the date this Agreement is signed, DBS will make JV Release 1.0
available to the Development Parties in the Test Environment for testing by 16
June 2000, and DBS will commence installation of the Signed Off JV Release 1.0
in the Production Environment by 10 July 2000 for simulation. Acceptance of JV
Release 1.0 is scheduled for 4 August 2000, and the System is scheduled to be
ready for commencement of production on schedule for 25 August 2000 under the
Systems Operations Agreement.
1. If DBS has not successfully completed installation JV Release 1.0 in
the Production Environment by 17 July 2000 as a result of circumstances
for which DBS is responsible, DBS will pay to Ceres a Performance
Credit in the amount of [**], excluding Saturdays and Sundays, between
17 July 2000 and the actual date of installation in the Production
Environment. The maximum Performance Credits under this point 1 is
[**].
2. If LLC does not declare Acceptance of JV Release 1.0 by 11 August 2000
as a result of circumstances for which DBS is responsible, DBS will pay
to Ceres a Performance Credit in the amount of [**], excluding
Saturdays and Sundays, between 11 August 2000 and the actual date of
Acceptance. The maximum Performance Credits under this point 2 is [**].
-2-
Schedule 2.2.1b
Charges for Termination for Convenience
If the CBOT Group terminates its participation in the work under Schedule 2.2.1
for convenience pursuant to Clause 18.2, the following charges will apply rather
than (S) 649 German Civil Code; Ceres will also owe compensation for work
already performed and for post termination cooperation (Clause 18.5).
1. If CBOT gives notice of termination for convenience prior to or on 30
June 2000, the charge will be [**].
2. If CBOT gives notice of termination for convenience between 1 July 2000 and
Acceptance of JV Release 1.0, the charge will be [**].
-1-
Schedule 2.2.2
Application Maintenance
1. Preventive and Corrective Maintenance
1.1 DBS will perform Preventive Maintenance and Corrective Maintenance.
Preventive Maintenance is the implementation of a change in the Eurex
Software to improve existing functionality or performance prior to a
problem in production becoming apparent. Corrective Maintenance is the
implementation of a change in the Eurex Software to correct a problem
after it has become apparent in production.
1.2 Either DBS or LLC can initiate Preventive Maintenance or Corrective
Maintenance by submitting a request to the other party 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 Eurex Software 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 Eurex Software 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 Eurex Software 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 Eurex Software 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
Eurex Software as a whole, although it can still be used
in production in a commercially viable manner, if
necessary with workarounds, the combination of Class 3
problems constitutes a Class 2 problem.
1.3 In the case of Preventive Maintenance and Class 3 problems the LLC
Program Manager(s) will inform the DBS Program Manager whether the
changes in the Eurex Software should be implemented independent of any
new release which is already planned or whether the changes
-2-
should be implemented beforehand in the then currently used version of
the Eurex Software. In the case of Corrective Maintenance for Class 1
and Class 2 problems, DBS will implement the appropriate changes in the
Eurex Software without undue delay.
1.4 The procedures for notifying each other about Maintenance (e.g., Help
Desk) are set forth in the Systems Operations Agreement. These
procedures will be refined during the course of this Agreement.
2. Implementation of Changes
2.1 DBS will create a "Service Investigation Request" ("SIR") in its
problem tracking system. The SIR contains the description of the
problem, the solution and, if appropriate, test cases. DBS will
regularly update the SIR to reflect the progress on implementing the
changes. DBS will provide copies of the SIR and all updates to LLC.
2.2 DBS will make the appropriate changes in the Eurex Software and notify
LLC that the changes are ready for testing in the Test Environment. The
parties will then jointly test the changes in the Test Environment, and
LLC will accept the changes upon successful conclusion of the tests.
2.3 After acceptance of the changes, DBS will install them in the
production environment 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.
3. Project Price
Unless expressly agreed otherwise in writing, DBS will invoice all work
on a time and materials basis. However, DBS will provide LLC an
estimate of the anticipated costs for completing work under a SIR (and,
if appropriate, updates of the estimate) as soon as reasonably
possible.
-1-
SCHEDULE 3.5
Project Managers and Substitutes
---------------------------------------------------------------------------------------
LLC DBS
----------------------------------------------------------------------------------------------------------------------
Program Manager ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
Substitute ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
-1-
SCHEDULE 3.6.2
Steering Committee
---------------------------------------------------------------------------------------
LLC DBS
----------------------------------------------------------------------------------------------------------------------
Program Manager ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
-1-
SCHEDULE 9.2a
DBS Catalogue of Prices
The prices in this Schedule 9.2a Sections 3 through 6 apply only to work which
DBS performs in relation to the CBOT Group. The current prices for corresponding
work which DBS performs in relation to the Eurex Group are set forth in Schedule
9.2b. The prices in Schedule 9.2b are being renegotiated and will be equivalent
to the prices in relation to the CBOT Group. Sections 1, 2 and 7 apply to the
Master Software Development Agreement, and Sections 1 through 7 apply to the
Systems Operations Agreement.
1. General Provisions
1.1 All amounts are in Euro and without VAT.
1.2 All amounts which are to be charged on a monthly basis are charged per
calendar month and are determined on the basis of whether or not the
individual billing criterion is satisfied on the calculation date
(Stichtag) which is generally the 15th of each month. For example, if
a monthly fee is charged for a Participant and the Participant is
connected on the 14th day or earlier of a calendar month, the full
monthly fee is charged. If the Participant is connected on the 16/th/
day or later of the month, no fee is charged for the month. DBS can
elect to charge for part of a month on a pro rata temporis basis by
giving three full calendar months notice prior to the month for which
the change takes effect.
1.3 The descriptions of services in the catalogue are solely for the
purpose of identifying the items for which remuneration is charged and
will not be used for interpreting the scope of work. The technical
descriptions of services are set forth in other Schedules, Change
Requests, Detailed Descriptions and other documents.
2. Software Reseach 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 applicable
Agreements, Schedules and Change Requests.
-2-
2.2 Remuneration
Unless the parties have agreed to a fixed price, the following hourly
rates apply for work performed by individuals in the following DBS
classifications, regardless of whether the individuals are DBS
employees, Freelancers or subcontractor employees.
--------------------------------------------
Price Levels Price
per hour
--------------------------------------------
Analyst [**]
--------------------------------------------
Junior Consultant [**]
--------------------------------------------
Consultant [**]
--------------------------------------------
Senior Consultant [**]
--------------------------------------------
Manager [**]
--------------------------------------------
Senior Manager [**]
--------------------------------------------
These hourly rates cover all costs incurred in connection with the
performance of the order, except for specific disbursements (e.g.,
travel in accordance with the DBS standard travel policies = DBAG
policies). DBS classifies personnel according to its reasonable
discretion. In the case of Freelancers and subcontractor employees, the
classification is based on a comparison of the individual's position
and duties to employees of DBS. DBS has informed the LLC Program
Managers about the standard travel policies. If these policies change
and the change would result in extra costs to the LLC Group, the extra
costs will not be charged. Travel time will be charged at one half 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. Network Implementation and Operation
3.1 Description of Work
Setup and operation of the Network for the System including:
implementation, configuration management, change management,
monitoring, fault recovery, troubleshooting and reporting.
The topology of the Network is designed to make an equal and
high-quality access to the System possible for all connected
Participants and to maintain a high performance. A "Participant" is an
enterprise or individual who has applied for admission to trade on an
Exchange or who has been admitted to trade on an Exchange.
-3-
[DIAGRAM]
Illustration 1: CBOT/Eurex(R) Alliance Network Architecture
The Participants will be connected according to a two-phase concept
(see illustration 1):
. Connection of the Participants to the System:
A Participant is connected to an Access Point via two 64 KBit per
second connections ("Participant Installation"). The two
connections will be implemented, wherever technically possible
and reasonable, using different telecommunication carriers with
physically separate connections or diverse routing from a single
carrier..
A Participant Installation can consist of one or more physically
separate offices connected to each other by a LAN or a WAN
("Sites"). A Participant Installation may be used by one or
several Participants. In the case of several Participants using a
single Participant Installation, the installation is a Multi
Member Integrated Server System (MMISS).
. Connection of the Access Points to the backend:
The local connections of the Participant Installations within a
geographic area are gathered together at "Access Points"
consisting of two communications servers and four routers
(maintained in a redundant structure of one server and two
routers each at two physically separate locations). An Access
Point is a logical unit having a maximum
-4-
capacity of [**]. Accordingly, up to a number of [**] can be
connected to one Access Point. The connection of the Access Points
to the backend is made by means of two separate connections. The
price for establishing a new Access Point will be agreed in the
corresponding Change Request.
3.2 Remuneration
The following prices are based on the number of Participant
Installations connected to the Access Points; a MMISS constitutes a
single Participant Installation under this section 3.2. The amounts
stated are for each calendar month. With respect to the individual
Participant Installations, the following prices apply:
------------------------------------------------------------------
Access Point Participant Price per Price per
Location Location Access Point Participant
(general urban Installation
area)
------------------------------------------------------------------
Chicago Chicago [**] [**]
------------------------------------------------------------------
Chicago Sydney [**]
------------------------------------------------------------------
Chicago Tokyo [**]
------------------------------------------------------------------
London London [**] [**]
------------------------------------------------------------------
Frankfurt Frankfurt [**] [**]
------------------------------------------------------------------
New York New York [**] [**]
------------------------------------------------------------------
A Participant can have more than two connections between a Participant
Installation and an Access Point. [**] will be charged for each
additional connection.
The above monthly fees for Participant Installations are based on the
carrier charges for leased lines between a Participant Installation and
an Access Point located within the borders of the same city. If the
Participant Installation is located outside of the city in which the
Access Point is located, the monthly charge will be increased to cover
higher carrier costs for installing and maintaining the leased lines,
if any, and any increased DBS handling costs. DBS will agree with LLC
on the increased costs before connecting the Participant Installations.
After receipt of notice canceling a Participant Installation, the
monthly fee will continue to be charged for the next three full
calendar months. Upon the cancellation of an Access Point, LLC must pay
the expenses for line costs or leases charged to DBS by third parties
until the end of the term of the agreement with the respective
supplier. Unless LLC grants its prior written consent, the terms of the
line agreements will not exceed [**], and lease agreements for
premises will not exceed initial fixed terms of [**]. DBS will
also charge LLC for the remaining book value (as shown on DBS's books)
of the fixed assets in the Access Points if DBS cannot
-5-
reasonably use the fixed assets elsewhere. If DBS charges the remaining
book value, DBS will transfer ownership of the corresponding fixed
assets to LLC in "as is" condition immediately on receipt of payment;
LLC is responsible for taking delivery of the fixed assets at the
Access Points.
4. Production
4.1 Description of Work
Operation of the Production Environment for the System:
The topology of the Production Environment is designed to make an equal
and high-performance access to the System possible for all connected
Participants and to maintain a high performance. The security of the
operated systems is achieved by:
. software installation on the backend systems, communication
servers and other systems to be operated,
. continuous monitoring of the architecture and the application,
. technical supervision and continuous monitoring of the end-of-day
processing (including preparation and distribution of the reports
necessary for the Exchange),
. continuous control of the system setup,
. redundant data protection of the operated systems,
. conclusion and administration of suitable license and maintenance
agreements.
The technical performance of the operated systems is achieved by:
. capacity and System Management,
. selection and use of suitable hardware and software,
. continuous performance analysis,
. preparation of reports and statistics.
-6-
The Production Environment consists of a redundant backend cluster
which is distributed to two locations together with subordinated data
base systems which are also constructed as disaster tolerant.
[GRAPHIC OMITTED]
Illustration 3: CBOT/Eurex(R) Alliance Production Architecture (current
plan)
4.2 Remuneration
The remuneration is [**] for each calendar month, commencing pro rata
temporis for the first month in which the backend hardware is installed
and ready for installation of Participant data (scheduled to be in the
first half of May 2000).
5. Customer Service
5.1 Description of Work
Customer Service is the central contact for Participants who want
technical support for the System. Customer Service also deals with all
technical orders from the LLC Group and coordinates the realization of
such orders (e.g., the connection of new Participants).
In the case of introduction of new systems or Modifications, Customer
Service will give support for Technical Member Readiness and Service
Implementation.
Customer Service consists of:
-7-
A. Connection Services which include:
. examining application forms from potential Participants for
completeness and plausibility,
. supporting the Participant by phone and electronic media in
the configuration, installation and operation of its
frontend installation,
. verification that the Participant Installation complies with
the Exchanges' regulations governing the connection of
Participants to the System (e.g. "Technische
Durchfuhrungsbestimmungen" = "Implementation Regulations
Concerning Technical Equipment"),
. setting up network connections between the Participant and
the Access Point (commissioning, coordinating the dates,
setup of the required bandwidths, etc.),
. connecting the Participant to the System and testing (Ping
Test, FTP Test, Failover Test),
. transferring the System application software to the
Participants' systems,
. technical configuration of the Participant in the backend,
. coordinating the functional setup of the Participant in the
backend with market supervision and production
administration.
. moving a Participant Installation from one Access Point to
another or from one location to another location.
The connection (including a move) of a Participant Installation
requires an order from LLC to DBS. The technical connection of a
Participant is concluded as soon as the Participant has been
completely set up in the production system and the Ping Test, the
FTP Test and the Failover Test have been successfully completed.
The Participant will be disconnected as soon as LLC notifies DBS
in writing that the Participant connection must be cancelled.
B. Technical Helpdesk (First Level Support) and Change Management
Technical Helpdesk includes the following services:
-8-
. solving technical problems in the everyday operation of the
Member Integrated System Server (MISSs), the WAN-Routers and
the MISS-Router-LAN,
. support for troubleshooting of technical errors in the
frontend installation,
. solving problems with the connection between the Participant
and the Access Point,
. answering questions on technical matters,
. answering questions regarding the VALUES-API interface.
All Participants operating a frontend installation which is
classified as "supported" and which fulfills the requirements of
the Implementation Regulations Concerning Technical Equipment
will be supported.
Change Management includes the following services for the
"supported" Participant Installations:
. provision of additional connections and cancellation of
connections between the Participant Installation and the
Access Point,
. setup of additional MISS and cancellation of MISS,
. change of report nodes,
. setup of new routers in the Participants' premises,
. cancellation of a Participant Installation.
C. Training
Technical Training and Technical Update Training will be offered
at the training locations London (UK) and Chicago (U.S.A.).
Technical Training is the initial training course for the System.
Technical Update Training is a follow-up course. Training
includes:
. preparation of the training software and other materials in
the Training Environment (Section 7) and function test
according to the "Training Service Level Agreements",
-9-
. preparation of the training sessions (backend and frontend),
. carrying out of the training sessions.
Up to a maximum number of 5 persons, the training sessions will
be carried out by one trainer. In the case of more than 5, but
not more than 15 persons, the training sessions will be carried
out by two trainers. DBS and LLC will establish a training
schedule every May and November for the following half-year. The
schedule will contain the scope, the exact dates and times as
well as the locations where the training sessions shall take
place. The training sessions shall be carried out in German or
English, as requested by LLC.
LLC will coordinate the training schedules with other exchanges
serviced by DBS.
D. Standard Package
The Standard Package is a turnkey solution offered to
Participants (in Sun and Intel NT based technologies) which
includes:
. installation and configuration service including a brief
local functional and technical introduction;
. remote system management, hardware and software maintenance
service through 30 June 2001.
The Standard Package comprises the following components:
. sale of hardware and system software for 2 Member
Integration System Servers which serve as trader
workstations for the stand-alone configuration (as specified
in more detail in the "CBOT/Eurex Alliance Standard Package"
sent to Participants in February 2000);
. installation of frontend System application software based
on the most recent releases;
. sale of two CISCO 2610 routers, one of which is equipped
with one ISDN port;
. installation of local area network connection between MISSs
and routers;
. sale of one standard office laser printer.
-10-
The specific terms and conditions for sale and delivery have been
separately agreed.
5.2 Remuneration
A. Connection Services will be remunerated for each new Participant
Installation in an amount of [**] per connection as a one time
charge. If Participants are connected to more than one Access
Point, the connection to each Access Point constitutes a separate
Participant Installation. The move of a Participant Installation
to another location is also a new Participant Installation and
will be remunerated separately; however, there will be no charge
under Section 3.2, last paragraph, first sentence, for the three
calendar months following the cancellation of the old connection.
B. Technical Helpdesk and Change Management is charged at a flat fee
of [**] per month commencing as of 1 April 2000. If the total
number of Sites connected to the System exceeds [**], an
additional monthly fee of [**] for each additional Site will be
charged.
C. Training (Technical Training and Technical Update Training) will
be charged as follows:
------------------------------------------------------------
Location Number of Price per day Price per day
Trainers for Technical for Technical
Training Update
Training
------------------------------------------------------------
London 1 [**] [**]
------------------------------------------------------------
2 [**] [**]
------------------------------------------------------------
Chicago 1 [**] [**]
------------------------------------------------------------
2 [**] [**]
------------------------------------------------------------
If a Trainer is required to travel to the Training location, DBS
will also charge for travel expenses incurred pursuant to DBS
travel policies (see, Clause 2.2).
LLC can cancel a training session free of charge by giving one
month's written notice prior to the scheduled training session.
If LLC cancels a training session within one month but no later
than one week prior to the scheduled session, DBS can charge a
cancellation fee of one half of the training fee per trainer. If
LLC cancels a training session with less than one week's notice,
DBS can charge the full fees.
D. Standard Packages are provided at a fixed price of [**] charged
at an initial monthly installment of [**] and [**] subsequent
monthly installments of [**].
-11-
6. Training Environment
6.1 Description
DBS will provide and operate the necessary infrastructure for Training
("Training Environment") which includes:
. frontend hardware and software infrastructure:
. creation of training-specific software images,
. installation and operation of the required frontend
environments and newest software releases,
. change of the software images between the training sessions,
. remote support during the training sessions,
. backend Support:
. provision of the training backend hardware and required
software infrastructure,
. system management.
The training infrastructure is currently operated at the following
locations with the number of workstations listed:
------------------------------------------------------------------
Location Address Number of Training
Workstations
------------------------------------------------------------------
London ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇ - ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------------------------------------------------
Chicago ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ - ▇▇▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
------------------------------------------------------------------
Chicago ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇
▇▇▇ - ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------------------------
The training facilities located in ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ are provided by LLC.
-12-
6.2 Remuneration
The remuneration consists of a monthly lump sum per location and a lump
sum per location and per training day. The following fees apply.
------------------------------------------------------------------------------------
Training Environment Charge per Charge per
month training day
------------------------------------------------------------------------------------
London [**] [**]
------------------------------------------------------------------------------------
Chicago [**] [**]
------------------------------------------------------------------------------------
Chicago (West ▇▇▇▇▇▇▇) [**] [**]
------------------------------------------------------------------------------------
7. Development Environment
7.1 Description
DBS provides and operates the infrastructure necessary for the
development and update of Eurex Software (the "Development
Environment"). For the purpose of planning the required number of
software development workstations, DBS and LLC 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 the Xetra(R) development.
A. Development Frontend Hardware and Software Infrastructure:
. provision of desktop development and office communication
frontend hardware and software (including servers),
. setup of the workstations,
. removal management,
. creation of specific software images,
. installation of new server software releases,
. installation of new desktop software releases,
. system management of the servers,
. hardware and software support of the desktop workstations.
-13-
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 System 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
the System application software releases. This environment also
represents a scaled-down image of the production environment. The
acceptance test environment is also used for Xetra(R).
7.2 Remuneration
The remuneration for the Development Environment is contained in the
hourly rates for DBS personnel and DBS subcontractors (working on an
hourly basis and not on a fixed price basis) and will not be charged
separately. With respect to LLC Group personnel (including
Freelancers), LLC subcontractors and DBS subcontractors working on a
fixed price basis, DBS will charge [**] per hour and person (based on 8
hours per day) for the use of the Development Environment.
-14-
INSERT SCHEDULE 9.2b
This schedule describes the services, prices and service levels for the Eurex
Exchanges provided by Deutsche Borse Systems on the signing date of this
Agreement.
-1-
SCHEDULE 12.3
List of Key Personnel
----------------------------------------------------------
LLC DBS
-------------------------------------------------------------------------------
Program Manager ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------
Dr. Gerd Kobschall
-------------------------------------------------------------------------------
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------
SCHEDULE 13.2
Gentlemen:
We have been retained by Deutsche Borse Systems AG ("DBS") as a subcontractor
under Clause 3.8 of a Master Software Development Agreement ("Agreement")
between and among Deutsche Borse AG, the Swiss Stock Exchange, Ceres Trading
Limited Partnership, CBOT/Eurex Alliance L.L.C. and DBS, among others, to
develop certain software modifications to what is referred to in that Agreement
as the Eurex Software (the "Modifications"). With respect to the Modifications
and for the sole purpose of delineating the extent of our rights in the
Modifications, we hereby confirm as follows:
1. The intellectual property rights in the Modifications and all original work
product and copies thereof including tapes, listings and other
documentation developed by us in making the Modifications shall be deemed
to be owned by you. At your expense, we shall take such steps as you
reasonably require to vest and perfect such ownership in you and/or your
designees and hereby grant to you the irrevocable, exclusive and
transferable right in the Modifications and in all data, databases and
works belonging thereto in source code and object code together with all
written or machine readable documentation and in any materials and results
pertaining thereto to use the same for all purposes connected with the
business purpose of you and your Affiliates in any way and form and without
temporal or geographic limitation.
2. Without limiting the generality of the foregoing, we acknowledge that we
have irrevocably granted to you the right to copy the Modifications, to
publish and to distribute the Modifications, or any portions thereof, under
any name and to adapt them, to create derivative works of the
Modifications, to translate the Modifications and to publish such
adaptations, derivative works and/or translations of the Modifications, to
transmit or broadcast the Modifications also in any interactive way and to
rent the Modifications to third parties. We agree that you are regarded as
the maker of any databases and that you own all economic exploitation
rights and that you may reproduce, distribute and communicate to the public
any such database in part or in total. You are entitled to grant
sublicenses in all of the above-mentioned rights.
3. As regards the moral rights in the Modifications, we acknowledge that we
are responsible for assuring that you are entitled to (a) the undisturbed
use of the Modifications and (b) in particular and without limitation
hereto, to exercise for the relevant author the right of dissemination, the
right of recognition of authorship, the right to prevent distortions of the
work, the right to decide whether the work should bear the author's
designation, the right of access to copies of the work and the revocation
rights in the Modifications. If in the context of your undisturbed use of
these rights a dispute arises between you and an author, then we shall make
sure that the author exercises its moral rights as you direct.
4. We acknowledge that we are precluded from developing for ourselves or for
others materials which are derived from those produced in creating the
Modifications. However, subject to our confidentiality obligations, this
restriction will not preclude us from using general concepts, know-how and
ideas used or developed in the course of providing services under our
agreement with Deutsche Borse Systems AG.
5. You understand that the tools, methodologies, techniques, and related
information used by us to create the Modifications are and shall remain our
property. Except as we have specified in the attachment hereto, we have not
incorporated any third party technology (including our own proprietary
technology) into the Modifications or otherwise used any third party
technology in the creation or implementation of the Modifications in a
manner that would infringe upon any proprietary interests of a third party
or require a license from a third party in order to lawfully use, copy,
support, modify or distribute the Modifications or any component thereof.
6. This letter is governed by German substantive law, excluding the United
Nations Convention on the International Sale of Goods.
Very truly yours,
[NAME OF SUBCONTRACTOR]
By: __________________________
__________________________