EXHIBIT 10.6
EXECUTION DRAFT
FIRST AMENDMENT
TO SOFTWARE LICENSE AGREEMENT
April 4, 2002
X.X. Xxxxxx Group Inc. ("XXXXXX") and E*TRADE Group, Inc. ("E*TRADE") hereby
agree to amend the Software License Agreement dated November __, 2000 between
E*TRADE and Xxxxxx (the "SOFTWARE LICENSE AGREEMENT"), effective immediately, as
follows.
The first three sentences of Section 1(a) are deleted and replaced with:
Upon the terms and conditions contained in this Agreement, Xxxxxx grants to
E*TRADE and E*TRADE`s Affiliates a limited, worldwide, perpetual,
irrevocable, fully paid-up license to use the Software (as hereinafter
defined) on E*TRADE`s and E*TRADE`s Affiliate`s servers and to sublicense
object code versions of the Software to, and make object code versions of
the Software available through E*TRADE`s service offerings for use only by,
Authorized Users. An "Authorized User" is an E*TRADE customer who has been
sublicensed by E*TRADE to use object code versions of the Software.
Section 1(b) is deleted and replaced with:
The Software will be provided to E*TRADE in object code and source code
versions, along with any documentation related thereto.
Sections 1(d)(i) and 1(d)(iv) are deleted.
Section 1(d) is amended to further include:
To the extent that E*TRADE allows a third party to access source code
included in the Software, such access shall be governed by the provisions
of Section 16.
Section 1(e) is deleted.
Section 1(f) is deleted and replaced with:
E*TRADE acknowledges and agrees that, as between Xxxxxx and E*TRADE, Xxxxxx
owns the Software (including the source code thereof) and the ideas,
methods of operation, processes, know-how and intellectual property rights,
including without limitation, all patent, copyright, trade secret and
trademark rights, associated therewith, as well as any and all derivative
works related thereto created by or on behalf of Xxxxxx and, other than as
expressly set forth in this Agreement, E*TRADE further acknowledges and
agrees that it has no interest whatsoever therein. Xxxxxx acknowledges and
agrees that, as between Xxxxxx and E*TRADE, E*TRADE owns all derivative
works in the Software (including the source code thereof) created by or on
behalf of E*TRADE and the ideas, methods of operation, processes, know-how
and intellectual property rights, including without limitation, all patent,
copyright, trade secret and trademark rights, associated therewith, as well
as any and all derivative works related thereto created by or on behalf of
E*TRADE and Xxxxxx further acknowledges and agrees that it has no interest
whatsoever therein.
Section 1(g) is deleted.
Section 2(a) is deleted and replaced by:
"Software" includes the object code and source code versions, as well
as any documentation related thereto, of:
(A) the current version of the E*TRADE Pro platform;
(B) the current version of the Xxxxxx UltimateTrader platform; and
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(C) the current version of the Xxxxxx UltimateTrader platform (which
includes such features as Comtex news, hot keys, the Island and Arca
ECN books, order entry window/level II window, improved chart
studies/improved performance, market ticker, high and low ticker,
position ticker and export order status, as such features currently
exist) modified to include the features and customizations by Xxxxxx
for E*TRADE included in the current version of the E*TRADE Pro
platform.
Section 3 is deleted and replaced with:
This Agreement shall become effective as of the date first above written
and shall remain in effect in perpetuity (the "TERM"), unless earlier
terminated in accordance with the provisions of Section 4.
Sections 4(a) and (b) are deleted.
Section 5 is deleted and replaced with:
(a) In consideration for the license and the Transition (as defined in
Section 13 hereof) provided hereby,
(i) Upon delivery of the source code for the customized version of
the UltimateTrader platform provided for by Section 13(c)(1)(C),
E*TRADE will pay Xxxxxx $1,000,000.
(ii) Upon successful completion of the Transition as determined in the
reasonable judgment of E*TRADE, E*TRADE agrees to: (i) issue to
Xxxxxx $2,400,000 of shares of the common stock, par value $.01
per share, of E*TRADE (the "SHARES"), with the number of such
Shares to be issued determined by dividing $2,400,000 by the
average closing price for the shares on the New York Stock
Exchange for the ten trading days prior to the completion of the
Transition and (ii) pay Xxxxxx $1,000,000.
(iii) Any dispute with respect to successful completion of the
Transition as determined in the reasonable judgment of E*TRADE
shall be resolved by arbitration under the Commercial Rules of
the American Arbitration Association. Three arbitrators shall be
selected. Each party shall select one arbitrator and the two
chosen arbitrators shall select the third arbitrator or, failing
agreement on the selection of the third arbitrator, the American
Arbitration Association shall select the third arbitrator. Unless
otherwise agreed by the parties, arbitration will take place in
New York City, New York. Any court having jurisdiction over the
matter may enter judgment on the award of the arbitrator(s).
(iv) Payments made to date (including the payment for February 2002)
made by E*TRADE to Xxxxxx shall not be refunded.
(b) Investment Representations of Xxxxxx.
Xxxxxx hereby represents and warrants that it is an accredited
investor within the meaning of Regulation D prescribed by the
Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and
that it is acquiring the Shares for investment for its own
account and not with a view to, or for resale in connection with,
any distribution thereof. Xxxxxx understands that the transaction
in which Xxxxxx is receiving the Shares has not been registered
under the Securities Act, that the Shares must be held
indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available, and that
the certificates representing the Shares shall bear an
appropriate legend to such effect.
(c) Registration Rights with respect to the Shares.
(i) From and after the date that the Shares are issued to Xxxxxx (the
"ISSUE DATE"), E*TRADE agrees to use reasonable efforts to file a
registration statement (the "REGISTRATION STATEMENT") with the
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SEC to effect the registration under the Securities Act of the
resale by Xxxxxx of the Shares (together with any shares of
E*TRADE common stock issued in connection with any stock
dividend, split, combination or recapitalization on, of or with
respect to such Shares, collectively, the "REGISTRABLE SHARES"),
and to respond promptly to any and all comments made by the staff
of the SEC to such Registration Statement so as to cause the
Registration Statement to be declared effective by the SEC,
subject to the provisions of subsection (c)(ix) below. E*TRADE
will use reasonable efforts to file the Registration Statement
not later than thirty (30) days after the Issue Date.
(ii) E*TRADE agrees that the Registration Statement shall comply in
all material respects with the requirements of the Securities Act
and the rules and regulations of the SEC promulgated thereunder
and shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading. The
financial statements of E*TRADE included in the Registration
Statement or incorporated by reference therein will comply as to
form in all material respects with the applicable accounting
requirements and the published rules and regulations of the SEC
applicable with respect thereto, and will be prepared in
accordance with GAAP consistently applied during the periods
involved (except as may be otherwise indicated in the financial
statements or the notes thereto or, in the case of unaudited
interim statements, as permitted by the SEC) and fairly present
the financial position of E*TRADE at the dates thereof and the
results of operations and cash flows for the periods then ended
(subject, in the case of unaudited interim statements, to
immaterial year-end adjustments).
(iii) E*TRADE shall prepare and file with the SEC, as promptly as is
commercially reasonably practicable, such amendments (including
post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the
Registration Statement effective during the Registration Period,
and, during such period, to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Shares covered by the Registration Statement.
(iv) E*TRADE shall furnish to Xxxxxx promptly after the same is
prepared and filed with the SEC, one copy of the Registration
Statement and any amendment thereto and each preliminary
prospectus and each amendment or supplement thereto; (B) on the
date of effectiveness of the Registration Statement or any
amendment thereto, a notice to Xxxxxx stating that the
Registration Statement or amendment has been declared effective;
and (C) such number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements
thereto and such other documents as Xxxxxx may reasonably request
in order to facilitate the disposition of the Registrable Shares
owned by Xxxxxx.
(v) E*TRADE shall use reasonable efforts to cause all Registrable
Shares to be listed on each national securities exchange or
quotation service on which securities of the same class or series
issued by E*TRADE are then listed.
(vi) As promptly as practicable after becoming aware of such event,
E*TRADE shall notify Xxxxxx of the happening of any event, of
which E*TRADE has knowledge, as a result of which the prospectus
included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and use reasonable
efforts to promptly prepare a supplement or amendment to the
Registration Statement to correct such untrue statement or
omission, and deliver such number of copies of such supplement or
amendment to Xxxxxx as it may reasonably request.
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(vii) E*TRADE shall use reasonable efforts to prevent the issuance of
any stop order or other suspension of effectiveness of the
Registration Statement, and, if such an order is issued, to
obtain the withdrawal of such order as soon as practicable
(including in each case by amending or supplementing the
Registration Statement) and to notify Xxxxxx of the issuance of
such order and the resolution thereof, and if the Registration
Statement is supplemented or amended, deliver such number of
copies of such supplement or amendment to Xxxxxx as it may
reasonably request.
(viii) E*TRADE will keep the Registration Statement effective until
the earlier of (A) such date as all of the Registrable Shares
have been resold or (B) two years from the date such Registration
Statement is declared effective by the SEC (the "REGISTRATION
PERIOD").
(ix) Without limiting the generality of subsections (vi) and (vii)
above, E*TRADE may defer filing of the Registration Statement or
refuse to permit Xxxxxx to resell any Registrable Shares pursuant
to the Registration Statement at any time if E*TRADE determines
in good faith that such a sale would be in violation of the
requirements of the Securities Act and the regulations
promulgated by the SEC thereunder or there exists at the time
material non-public information relating to E*TRADE which, in the
business judgment of E*TRADE, should not be disclosed. E*TRADE
shall not under any circumstances be entitled to exercise its
right to defer filing of the Registration Statement or suspend
sales under this subsection more than two times in any twelve
(12)-month period, and the period during which the Registration
Statement under this subsection may be withdrawn shall not exceed
90 days each such time.
(x) Xxxxxx agrees that, upon receipt of any notice from E*TRADE of
the happening of any event of the kind described in (vi), (vii)
or (ix) above, Xxxxxx will immediately discontinue disposition of
the Registrable Shares pursuant to the Registration Statement
until Xxxxxx`s receipt of the copies of the supplemented or
amended prospectus contemplated by (vi), (vii) or (ix) above, if
so directed by E*TRADE, Xxxxxx shall deliver to E*TRADE or
destroy (and deliver to E*TRADE a certificate of destruction) all
copies in Xxxxxx`s possession, of the prospectus covering such
Registrable Shares current at the time of receipt of such notice.
(xi) Xxxxxx agrees that E*TRADE shall not be required to conduct an
underwritten offering and that any sales of Registerable Shares
shall be made through E*TRADE Securities Inc., provided that no
commission shall be payable by Xxxxxx in connection with such
sales.
(xii) Xxxxxx, by its acceptance of the Registrable Shares, agrees to
cooperate with E*TRADE as reasonably requested by E*TRADE in
connection with the preparation and filing of the Registration
Statement, unless Xxxxxx has notified E*TRADE in writing of its
election to waive the obligations of E*TRADE with respect to the
Registration Statement, including without limitation that (A)
Xxxxxx will provide E*TRADE all information and statements about
or pertaining to Xxxxxx, and shall execute such documents in
connection with such registration as E*TRADE may reasonably
request, on such timely basis as is reasonably deemed by E*TRADE
to be necessary or appropriate for the Registration Statement or
to comply with applicable requirements of the National
Association of Securities Dealers or other applicable regulatory
requirements, and (B) Xxxxxx will furnish promptly to E*TRADE in
writing all information required from time to time to be
disclosed in order to make the information previously furnished
to E*TRADE by Xxxxxx not misleading. E*TRADE shall have no
obligation to register the resale of the Registerable Shares or
to cause or maintain the effectiveness of the Registration
Statement unless Xxxxxx complies with the terms hereof.
(xiii) E*TRADE pay all Registration Expenses (as defined below) in
connection with any registration, qualification or compliance
hereunder, and Xxxxxx shall pay all Selling Expenses (as defined
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below) and other expenses that are not Registration Expenses
relating to the Registrable Shares to be resold by Xxxxxx.
"Registration Expenses" shall mean all expenses, except for
Selling Expenses, incurred by E*TRADE in complying with the
registration provisions set forth herein, including, without
limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel
for E*TRADE, blue sky fees and expenses and the expense of any
special audits incident to or required in connection with any
such registration. "Selling Expenses" shall mean selling
commissions, underwriting fees, expenses of counsel to Xxxxxx and
stock transfer taxes applicable to the Registrable Shares.
Section 6(c) is amended by deleting the first sentence thereof and replacing
such first sentence with:
E*TRADE will have sole responsibility for obtaining the third-party
software licenses needed to host the Software specified as follows:
Oracle 8i, BEA Tuxedo, BEA Jolt, Veritas, Sonic Software Sonic MQ,
Rogue Wave Tools.H++, Tools.H++ Professional and Threads.H++.
Section 7 is deleted.
Section 8(c) is deleted and replaced with:
EXCEPT FOR BREACHES OF SECTION 16, NEITHER PARTY SHALL HAVE ANY
LIABILITY WHATSOEVER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING, DESIGN,
MANUFACTURE, INSTALLATION OR USE OF THE SOFTWARE, WHETHER DUE TO
NEGLIGENCE OR ANY OTHER CAUSE INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF DATA OR GOODWILL, OR THE COST OF PROCUREMENT OF SUBSTITUE
GOODS. EXCEPT IN THE EVENT OF E*TRADE`S VIOLATION OF XXXXXX`S
INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SOFTWARE (INCLUDING, WITHOUT
LIMITATION, E*TRADE`S WILLFULL BREACH OF THE RESTRICTIONS ON
SUBLICENSING THE SOFTWARE AND E*TRADE`S BREACH OF SECTIONS 1(d), 11 OR
16 HEREOF), EITHER PARTY`S LIABILITY TO THE OTHER FOR ANY CLAIMS
HEREUNDER SHALL BE LIMITED TO THE AGGREGATE CONSIDERATION PAID XXXXXX
BY E*TRADE.
Section 8(d) is deleted.
Section 9 is deleted.
Section 10 is deleted.
Section 11 is deleted and replaced with:
E*TRADE shall not remove or otherwise change any terms of the End-User
Agreement or the copyright notice contained in the Software without the
prior written consent of Xxxxxx, provided that E*TRADE may include in
the Software a copyright notice with respect to any additions to or
modifications of the Software created by or on behalf of E*TRADE.
Notwithstanding the foregoing, the Software shall not feature or
display any trademarks, service marks or trade names of Xxxxxx unless
approved in advance and in writing by E*TRADE.
Section 13(a) is amended to further include:
Xxxxxx shall not be responsible for providing Maintenance and Support
Services in connection with derivative works based on the Software made by
E*TRADE.
Section 13 is amended to further include:
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(c)
(1) Xxxxxx and E*TRADE shall each use reasonable best efforts to
effect the following transition (the "TRANSITION"):
(A) provide on the date hereof copies of and familiarize E*TRADE
personnel with the source code and operation of the current
version of the E*TRADE Pro platform based on the Software;
(B) on the date hereof, provide E*TRADE with copies of the source
code of the current version of the Xxxxxx UltimateTrader
platform;
(C) within sixty (60) days of the date hereof, customize the
current version of the UltimateTrader platform (which includes
such features as Comtex news, hot keys, the Island and Arca ECN
books, order entry window/level II window, improved chart
studies/improved performance, market ticker, high and low ticker,
position ticker and export order status, as such features
currently exist) to include those features unique to the current
version of the E*TRADE Pro platform (including removing Times Ten
and replacing it with Oracle) and provide copies of and
familiarize E*TRADE personnel with the source code and operation
of such customized version;
(D) on the date hereof, provide all source code and documentation
related to Super SOES order entry to enable E*TRADE to implement
Super SOES order entry when its back end is ready; and
(E) to the extent required by E*TRADE, provide those services
necessary to operate the E*TRADE Pro platform (or UltimateTrader
platform, as appropriate) using competent and qualified
personnel, including the data feeds and related hardware and
software.
(2) Until the Transition is completed, Xxxxxx shall continue to provide
the services and access to intellectual property and data feeds
currently provided by Xxxxxx to E*TRADE and its customers and otherwise
as necessary to allow E*TRADE to continue to operate its E*TRADE Pro
platform based on the Software ("TRANSITION SUPPORT"). Transition
Support shall include providing the levels of availability set forth in
Schedule 3. The Transition shall be completed and no further Transition
Support shall be required only when:
(A) E*TRADE is able to operate the customized version of the
UltimateTrader platform (including the data feeds and ticker
plant) at the same level of functionality and performance as
currently provided by Xxxxxx in an E*TRADE or an E*TRADE
authorized third party data center (such as the AT&T Co-Location
center) without assistance from Xxxxxx or dependence on
third-party data feeds to Xxxxxx; and
(B) all of the special features unique to E*TRADE`s current
production version of the E*TRADE Pro platform are fully
integrated into the current Xxxxxx production version of the
UltimateTrader platform such that the E*TRADE specific features
run as well as on the current E*TRADE production version, and the
Xxxxxx-specific features run as well as on the current Xxxxxx
production version;
provided that:
(C) E*TRADE shall have 21 business days from the date of delivery
of the source code (as part of a complete CD-ROM package or via
FTP over a web site) for the current version of the E*TRADE Pro
platform to compile such source code to determine if the
resulting object code is equivalent to the version of object code
currently used by E*TRADE; and
(D) E*TRADE shall have 21 business days from the date of delivery
of the source code (as part of a complete CD-ROM package or via
FTP over a web site) for the customized version of the
UltimateTrader platform to perform acceptance tests in accordance
with the criteria set forth in subsections (A) and (B) above.
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In each case in subsections (C) and (D) above, unless E*TRADE informs
Xxxxxx within such 21 business day period that such source code is not
acceptable, such source code will be deemed accepted.
(3) For a period of at least six (6) months and until the Transition is
complete; provided that such period shall not exceed twelve (12) months,
E*TRADE shall pay $100,000 per month as follows:
(i) E*TRADE shall pay Xxxxxx`s UltimateTrader platform data
feed vendors directly on behalf of Xxxxxx upon presentation of
invoices by Xxxxxx; then
(ii) E*TRADE shall apply any remaining funds to cover
E*TRADE`s costs of implementing Co-Location (as defined below);
then
(iii) E*TRADE shall pay any remaining funds to Xxxxxx to be
applied by Xxxxxx first to paying for costs associated with
Xxxxxx`s technology infrastructure (e.g., servers, networks,
etc.), maintenance, and technical facilities (either owned or
leased) to ensure the delivery of the data feeds and redundancy
necessary to support E*TRADE production trading, and second to
paying the salaries of employees required to support E*TRADE
production trading.
(4) Xxxxxx represents and warrants that the following activities are all of
the principal tasks required to co-locate the communications and routing
equipment necessary to support E*TRADE in the manner in which Xxxxxx has
supported E*TRADE to date ("CO-LOCATION"):
(A) Re-terminating the following circuits inside of the AT&T
Co-Location space in Allen, TX.
(i) NASDAQ T1 circuit from Worldcom (carries Level I, Level
II, and NTDS feeds)
(ii) SIAC T3 circuit from AT&T (carries CQS and CTS feeds)
(iii) E*Trade T1 circuit.
(B) Connecting the above-listed circuits to a router in the
Co-Location space.
(C) Installing a Sun departmental machine with 4 CPUs (as well as a
back-machine, which also runs the processes that provides the needed
market data for the market feed servers located at E*Trade`s site) to
run the ticker plant and distribution processes in the facility.
(5) The data feeds required to support the UltimateTrader platform are CQS
and CTS (both from Siac), Xxxxx 0, Xxxxx 0 and NTDS (all from NASDAQ), the
Island ECN book and the Arca ECN book. E*TRADE shall apply for such data
feeds within 14 days of the date hereof and use reasonable best efforts to
get them up and running as soon as reasonably possible.
(6) The parties agree that:
(A) in order to assist in the Transition, E*TRADE will send one senior
Java developer with Swing experience, one senior Java developer with
Oracle or Times Ten database experience, server experience and some
C++ experience, and one senior developer with real time multi-tasking
C++ experience, to work with Xxxxxx developers during the Transition;
and
(B) because the services of personnel with in-depth knowledge of the
operation of the UltimateTrader platform and the E*Trade Pro platform
are essential to competing the Transition, Xxxxxx will make available
the services of each of Xxxx Xxxxxxxx, Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx
Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxx and Xxxx Xxxxxx (along with other
necessary Xxxxxx employees) to assist in the Transition and as
required by E*TRADE.
(C) because the services of personnel with in-depth knowledge of the
operation of the E*Trade Pro platform are essential to completing the
Transition, E*TRADE will make available the services of its personnel
with the greatest familiarity with the E*Trade Pro platform (along
with other necessary E*TRADE employees) to assist in the Transition.
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(7) Until the Transition is completed, E*TRADE may have an E*TRADE
employee present on the Xxxxxx premises, and such employee shall be
given access to management and all such information or documents as he
or she shall reasonably request, to monitor the progress of the
Transition and the compliance by Xxxxxx with the terms of this
Amendment.
(8) As part of the Transition, Xxxxxx will modify its ticker plant to
allow the use of E*TRADE`s existing Bridge data feed to E*TRADE`s data
room for providing index quotes and as a back-up for market feeds.
(e) Xxxxxx and E*TRADE agree that E*TRADE shall be entitled to all of
the benefits of 11 U.S.C. Section 365(n) in connection with this
license.
Section 14 is deleted and replaced by:
E*TRADE shall have the right to solicit all of Xxxxxx`s employees;
provided that E*TRADE may not solicit Xxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxx
Xxxxxx, Xxxxx Xxx Xxxxxx or Xxxxx Xxxx during their employment by
Xxxxxx.
Section 17 is amended to further include:
(d) For purposes of Section 17(a), "Software" shall not include any
modifications to the Software made by E*TRADE. For purposes of Section
17(b), "Software" shall include any modifications to the Software made
by E*TRADE.
Section 18 (m) is deleted and replaced with:
The provisions of Sections 11, 14, 16, 17 and 18 shall survive
termination or expiration of this Agreement.
Schedule 3 (Preferred Escrow Agreement) is deleted and replaced by:
A. INFRASTRUCTURE SERVICES AVAILABILITY.
Xxxxxx will provide the following level of availability for the market
data feeds, connectivity and Xxxxxx technology infrastructure necessary
to support delivery of market data to E*TRADE (the "XXXXXX PLATFORM"):
1. Xxxxxx Platform Availability. During Market Hours (as defined
below), Xxxxxx will provide 99.0% average Xxxxxx Platform availability
in any given month and 99.0% average Xxxxxx Platform availability in
any given calendar quarter (not including Scheduled Xxxxxx Platform
Maintenance). "Xxxxxx Platform availability" will not be affected by
failures of E*TRADE developed applications or E*TRADE`s systems, or any
other failures beyond the reasonable control of Xxxxxx. The Xxxxxx
Platform is considered unavailable if a Severity 1 Problem or a
Severity 2 Problem occurs.
2. Definition of Market Hours. "Market Hours" shall mean 8:00 am to
8:00 pm ET on days on which the NASD considers normal operating days.
In the event that those hours of operation are expanded beyond normal
"Market Hours," the parties shall meet in good faith to discuss whether
to make any appropriate modifications.
3. Notification of Scheduled Xxxxxx Platform Downtime. Xxxxxx will
notify E*TRADE of scheduled platform changes a minimum of seventy-two
(72) hours in advance.
B. RESPONSE AND RESOLUTION TIMES.
1. Definitions.
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* A "Response" is an acknowledgement of a trouble
ticket delivered by E*TRADE to Xxxxxx (a "Trouble Ticket") or a
response initiated by Xxxxxx to E*TRADE in those cases where Xxxxxx
discovers the problem without contact from E*TRADE. Xxxxxx will
proactively escalate problems that are unresolved in accordance with
the intervals of time listed in the escalation chart. To determine
compliance with the Response intervals, a Response shall be deemed to
be provided to E*TRADE when: (1) in response to a Trouble Ticket,
E*TRADE has received a communication (phone or email or page) from
Xxxxxx acknowledging the problem; or (2) Xxxxxx notifies E*TRADE
through phone or email or page contact of such problem, if such problem
was discovered by Xxxxxx or one of its other partners.
* "Resolution" is reached when one or more of the
following actions have occurred: (1) corrective actions by Xxxxxx has
resumed service; (2) further use of the application during the
resolution period does not reproduce the problem (in this case, the
problem is considered closed, but can be reopened should the same
problem occur at a later date); (3) the suspected problem is determined
by Xxxxxx, in its reasonable discretion and evidenced through records,
to be known code restriction, caused by the applications or the
facilities, equipment, and personnel of E*TRADE other than Xxxxxx, its
agents, subcontractors or any third party service provider of Xxxxxx
(in which case, it will no longer be classified as a problem); or (4)
Xxxxxx and E*TRADE mutually agree that the problem is either resolved
or not considered severe.
* A "problem" is a failure of the Infrastructure
Services as described below.
* A "Severity 1 Problem" is a problem that causes a
complete outage of the market data services provided by Xxxxxx. For
example, E*TRADE is unable to retrieve market data at E*Trade`s site.
This would be an indication of an outage. This example must occur
multiple times and be reproducible by Xxxxxx employees
* A "Severity 2 Problem" is a problem that causes a
significant failure or degradation in performance of market data
services provided by Xxxxxx. Examples: (1) delivery of market data
which is delayed more than one second (1 sec) or (2) Xxxxxx code
modules fail to return the correct result. These examples must have
occurred multiple times and be reproducible by Xxxxxx employees.
* A "Severity 3 Problem" is a problem that that
causes a minor portion of an application to run in degraded mode or not
work as expected but has only minimal impact upon the use of the
application. This problem must have occurred multiple times and be
reproducible by Xxxxxx employees.
2. Response and Resolution Times.
Severity 1 Problem:
Response: within fifteen (15) minutes
Resolution: within four (4) hours
Severity 2 Problem:
Response: within thirty (30) minutes
Resolution: within twenty-four (24) hours
Severity 3 Problem:
Response: within one (1) business day
Resolution: within five (5) business days
Although Xxxxxx is under no obligation to resolve non-reproducible
errors, Xxxxxx will respond to any such error in the time-frame set
forth above and will use commercially reasonable efforts in
collaborating with E*TRADE to resolve such non-reproducible error.
3. Escalation Procedures: If Xxxxxx does not respond to requests for
service from E*TRADE within the time frames described above, E*TRADE
may contact Xxxxxx escalation contacts below.
Escalation Level Severity 1 Severity 2 Severity 3
Support Engineer 15 minutes 1 hour 24 hours
Manager 2 hours 4 hours 48 hours
Vice President 8 hours 24 hours 96 hours
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Severity 1 Update Frequency: Every 30 minutes or as otherwise
agreed to by the parties.
Severity 2 Update Frequency: Every hour during business hours or
as otherwise agreed to by the parties.
Severity 3 Update Frequency: Every business day or as otherwise
agreed to by the parties.
4. Customer Assistance: E*TRADE employees or E*TRADE authorized
independent contractors with sufficient knowledge of the problem must
be available during the Resolution interval to explain and/or describe
the problem if the Xxxxxx staff deems it necessary. Timely resolution
of the problem may require E*TRADE to provide web access logs,
application error logs etc.
E*TRADE GROUP, INC.
By: ___________________
Name: _________________
Date: __________________
X.X. XXXXXX GROUP INC.
By: ___________________
Name: _________________
Date: __________________
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