Exhibit 10.21
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment. Asterisks denote omissions.
Final Version of the Systems Operations Agreement
Systems Operations Agreement
This Systems Operations Agreement (this "Agreement") is entered into
between,
on the one hand, Deutsche Borse Systems AG, Xxxxxxxxxxx 0 - 00, 00000 Xxxxxxxxx
xx Xxxx, Xxxxxxx
(hereinafter, "DBS")
and, on the other hand,
1. Deutsche Borse Aktiengesellschaft, Xxxxxxxxxxx 0 - 00, 00000 Xxxxxxxxx xx
Xxxx, Xxxxxxx
(hereinafter, "DBAG")
2. Swiss Stock Exchange, Xxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
(hereinafter, "SWX")
3. Board of Trade of the City of Chicago, 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000-X,
Xxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of America
(hereinafter, "CBOT")
4. Ceres Trading Limited Partnership, c/o Board of Trade of the City of
Chicago, 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000-X, Xxxxxxx, Xxxxxxxx 00000,
Xxxxxx Xxxxxx of America
(hereinafter, "Ceres")
5. Ceres Alliance L.L.C., c/o Board of Trade of the City of Chicago, 000 Xxxx
Xxxxxxx Xxxx., Xxxxx 000-X, Xxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of
America
(hereinafter, "Ceres Alliance")
6. Eurex Frankfurt AG, Xxxxxxxxxxx 0, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
(hereinafter, "Eurex Frankfurt")
7. Eurex Zurich AG, Xxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
(hereinafter, "Eurex Zurich")
Final Version of the Systems Operations Agreement
-2-
8. Eurex Clearing AG, Xxxxxxxxxxx 0, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
(hereinafter, "Eurex Clearing")
9. CBOT/Eurex Alliance, L.L.C., 000 Xxxx Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 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, for the time being, as the "Future Development Entity" under the
"Master Software Development Agreement" between the parties under which DBS
will develop and maintain the Eurex Software for LLC on behalf of the
Development Parties.
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 the Master
Software Development 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
Final Version of the Systems Operations Agreement
-3-
the System with regard to the CBOT Group until the Master Software
Development Agreement and this 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 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,
Xxxxxxxxxxx 0 - 00, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, 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 elsewhere.
H. The parties to this Agreement are executing this 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, and the Master
Software Development Agreement.
(S) 1
Definitions, Priorities in the Contractual Relationships, Cooperation and
Fairness
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 implementation, maintenance and operation of the System. The
development and maintenance of the Eurex Software itself will be governed
by the Master Software Development Agreement, and any software development
work will be governed and takes place by the Master Software Development
Agreement even if it has been initiated under this Agreement. The parties
will, however, coordinate the activities under this Agreement and the
Master Software Development 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
Final Version of the Systems Operations Agreement
-4-
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 Interim Agreement and payments made under the
Interim Agreement will be credited against payments due under this
Agreement.
1.4 [**]
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 operation of the System 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 the System or any similar system, software
program or computer network, directly or indirectly, in part or in total,
for DBAG including its Affiliates. DBS
Final Version of the Systems Operations Agreement
-5-
represents that the prices of the DBS Catalogue of Prices correspond 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 DBS's resources. The Change Requests may
also require considerable resources from the other parties. DBS will treat
LLC and the Eurex Entities equally, and 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 and the Eurex Entities, 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 Agreements concerning Restricted Products. DBS will not enter into any
separate agreements with any of the other parties to this Agreement about
the 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.
1.9 CBOT Direction. With respect to matters regarding the part of the System
which relates solely to the CBOT Group, the LLC will act exclusively at the
direction of the CBOT Group's representatives in the management of the LLC,
and the Eurex Group's representatives in the management of the LLC will not
oppose such direction. The LLC will promptly provide to the CBOT Group any
notices, invoices or other communication regarding the part of the System
which relates solely to the CBOT Group.
1.10 Respective Rights and Obligations. When a reference is made in this
Agreement to the respective rights or obligations of LLC or Eurex Entities
(or to LLC and the Eurex Entities "as applicable" or "as the case may be"),
it is intended that the rights or obligations of LLC relate solely to the
part of the System for which it has engaged DBS under Clause 2.1 and that
the rights or obligations of the Eurex Entities relate solely to the part
of the System for which it has engaged DBS under Clause 2.1.
Final Version of the Systems Operations Agreement
-6-
(S) 2
Engagement and Project Structure
2.1 Engagement. LLC hereby engages DBS as general contractor to implement,
operate and maintain the part of the System which relates solely to the
CBOT Group. The Eurex Entities hereby engage DBS as general contractor to
operate and maintain the part of the System which relates solely to the
Eurex Group. For the part of the System which is shared by the CBOT Group
and the Eurex Group, LLC engages DBS (see, Schedule 2.1). The CBOT Group
and the Eurex Group will not be jointly and severally liable to DBS for the
shared portion of the System; only the LLC is liable with regard to the
shared portion of the System. The implementation, operation and
maintenance of the System 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 Sub-Projects. The main initial Sub-Projects will consist of the
implementation, operation and maintenance of the System including Hosts,
Network and Access Points, ancillary software- and hardware-components
(e.g., operating systems, system management Tools) and the connection of
these elements with the Network, all as set forth in more detail in
Schedule 2.2 which also includes the payment schedule for those Services
until 31 December 2000 for those Services regarding the CBOT Group, and in
Schedule 1.4 and in Schedule 9.2b regarding the Eurex Group.
If the CBOT Group exercises its right to terminate for convenience under
Clause 18.2, the fixed payments in lieu of payments under (S) 649 German
Civil Code are set forth in Schedule 2.2a.
The scope of work for all Sub-Projects is defined in Schedules 2.2 for the
LLC and in Schedules 1.4 and 9.2 (b) for the Eurex Entities and any Change
Requests (see, Clause 2.5), and may be refined in appropriate document
Deliverables once Sign-Off has been given for such Deliverables (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, 1.4 and 9.2b). and the Change Requests. If any provision in Schedules
2.2 and 1.4 or 9.2b 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 Schedules 2.2 or in 1.4 or 9.2b 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, 1.4, 9.2(b) and 10.1 and each
Change Request must describe the specific work results ("Deliverables") to
be produced under the Schedule or
Final Version of the Systems Operations Agreement
-7-
Change Request. A Deliverable must include, if appropriate, functional and
technical specifications ("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") with respect
to the part of the System relating solely to the CBOT Group and the part of
the System which is shared by the CBOT Group and the Eurex Group. The
Eurex Entities or DBS can request a change in the scope of work or any
other part of the Project at any time with respect to the part of the
System relating solely to the Eurex Group (see, Schedule 2.1). A Change
Request will be in writing and will follow a format which DBS and LLC or
the Eurex Entities, respectively, will agree without undue delay. Each of
DBS and LLC or the Eurex Entities, respectively, will provide each of the
other of them and members of the LLC Group with a copy of all proposed and
final Change Requests 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 other Deliverables and Services, including Deliverables and
Services under the Master Software Development Agreement,
. impact on service levels,
. 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.
Final Version of the Systems Operations Agreement
-8-
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 or parties to
assist in providing the missing information without undue delay. If a
Change Request initiated by LLC or the Eurex Entities 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
or the Eurex Entities, respectively, 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.
A Change Request will become binding when it has been signed by both LLC
and DBS or the Eurex Entities and DBS, respectively. LLC and DBS or the
Eurex Entities and DBS, respectively, will evaluate Change Requests without
undue delay. No party is under an obligation to perform work under a
Change Request prior to the Change Request having been signed; the costs
for performing any such work prior to signing will be borne by the party
performing the work.
LLC or the Eurex Entities, respectively, can require DBS to accept a Change
Request if (i) the Change Request is related to their part of the System
provided that LLC will give instructions as to the shared part of the
System, and (ii) LLC or the Eurex Entities, respectively, have 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 or the Eurex Entities, as applicable, to accept a Change
Request.
DBS will treat Change Requests and instructions proposed for the CBOT
Group no less favorably than DBS treats those submitted for the LLC or the
Eurex Entities, respectively.
An Operating Party can also submit a Change Request under this Clause or an
instruction under Clause 3.2 as a Change Request. The submission of a
Change Request or an instruction must comply with the Change Request
procedure, whereby the Change Request or instruction will become binding
when it has been signed by one or more authorized officers of the Operating
Party without the LLC Program Managers having to sign it. Such a Change
Request or instruction cannot be to the detriment of another party which
does not sign the Change Request. In the case of a Change Request or an
instruction which is to the 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.
(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 for LLC
and Schedules 1.4 and 9.2b for the Eurex Entities and the Change Requests.
DBS will bear the overall responsibility for completion of work within
Final Version of the Systems Operations Agreement
-9-
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.
Subject to Clause 2.5, LLC will be responsible for ensuring and
coordinating the contributions of the members of the LLC Group with respect
to the part of the System relating solely to the CBOT Group and the part of
the System which is shared by the CBOT Group and the Eurex Group. Eurex
Zurich will be responsible for ensuring and coordinating the contributions
of the members of the Eurex Group with respect to the part of the System
relating solely to the Eurex Group.
If DBS reasonably believes that implementation of an instruction is
contrary to other work under the Project (e.g., the implementation would
interfere with the operation of another Exchange or clearing function) or
would materially impair DBS's ability to perform other work under this
Agreement or the Master Software Development Agreement, DBS will notify the
members of the LLC Group, and DBS will not be required to implement the
instruction until LLC has confirmed the instruction. If the conflict only
relates to the part of the System which relates solely to the Eurex Group
and does not have any detrimental effect on the part of the System which
relates solely to the CBOT Group, Eurex Zurich is responsible for
confirming the instruction. If a matter is referred to LLC for
confirmation, DBS will, upon request of LLC, provide consultation on the
matter on a time and materials basis charged to LLC.
3.3 Delays. Reference to obligations of LLC or the Eurex Entities,
respectively, also includes all Tasks to be performed by the respective
members of the LLC Group. DBS will not be responsible for delays in work
under a Sub-Project or for budget overruns which are caused by acts or
omissions by a member of the LLC Group. DBS must notify LLC or Eurex
Zurich, respectively, 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 Participation. LLC and the Eurex Entities will provide the resources
identified in Schedules 2.2 and 1.4 and 9.2b, respectively, and the
applicable Change Requests and perform such other Tasks as may be set forth
in Schedules 2.2, 1.4 or 9.2b, respectively, and the Change Requests. LLC
or the Eurex Entities, respectively, can participate in the Project, and
LLC or the Eurex Entities respectively will provide DBS with all reasonable
cooperation and assistance in the Project, in each case including:
3.4.1 LLC or the Eurex Entities, respectively, will make all decisions
reasonably requested of it by DBS in a timely manner; such decisions
will be made at the latest within one week after receiving a written
request from DBS for the decision; this one week period does not
commence to run if LLC or the Eurex Entities, respectively, still
require reasonable
Final Version of the Systems Operations Agreement
-10-
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 or the Eurex Entities, respectively, will provide in a timely
manner all information which DBS reasonably requests.
3.4.3 As DBS may reasonably request assistance, LLC or the Eurex Entities,
respectively, 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 Each of the members of the LLC Group may assign additional employees
of such members or 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,
- to the extent reasonably possible, what type of know-how the
personnel should acquire.
DBS can refuse to allow such personnel to participate if DBS states
reasonable grounds in writing, such as
- the participation of such personnel would materially interfere in
DBS's performance of its obligations under the Project, or
- the participation of such personnel 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
Final Version of the Systems Operations Agreement
-11-
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 3.6.3, 7.3, 8.1 and 9.1). The Program Manager representing the
Eurex Group shall be entitled to act alone with respect to the part of the
System which exclusively relates to the Eurex Group. 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 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 Master Software Development
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 Master
Software Development Agreement,
Final Version of the Systems Operations Agreement
-12-
. 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 Master
Software Development 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.
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).
Final Version of the Systems Operations Agreement
-13-
3.8 Subcontractors. Each party may engage third parties as subcontractors in
connection with this Agreement. DBS, on the one hand, and LLC or the Eurex
Entities, respectively, on the other hand, must obtain the prior written
consent of the other party prior to engaging any subcontractor other than a
subcontractor who is a natural person (such natural person is hereby
defined as a "Freelancer"), which consent will not be unreasonably
withheld. DBS or LLC or the Eurex Entities, respectively, 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. Each party will be liable for the performance of its
subcontractors under (S) 278 German Civil Code. Each party must especially
make sure that its subcontractors comply with all provisions of the
Agreement relating to confidentiality and 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 the
applicable 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 implement, operate and maintain the System 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 Derivatives Products to the
extent that specific IOSCO Principles relate to functionality included in
the System) for the operation of the Exchanges in effect on the execution
date of this Agreement. LLC is responsible for informing DBS about these
requirements and their impact on the System.
4.2 Other Standards. LLC and Eurex Entities, respectively, can require that
the Project will comply with other standards at any time during the Project
by initiating the Change Request procedure.
4.3 Monitoring. Each Operating Party will monitor all changes in the legal and
regulatory requirements and standards set forth in the preceding Clauses
4.1 and 4.2 for its respective Exchange. Each Operating Party will inform
DBS without undue delay about any changes needed in the System in order to
comply with changes in such requirements and standards, and DBS will
implement such changes without undue delay. The relevant Operating 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 an Operating Party that occur after the execution date of
this Agreement.
Final Version of the Systems Operations Agreement
-14-
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
Tools and Production 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
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 or the Eurex Entities 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 (other than software-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 implementing, operating and maintaining the System. 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 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. Each member of 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, the Eurex Entities, their 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 the Eurex Entities, respectively, or, if not assignable,
DBS will exercise any warranty rights against the third party for the
account of LLC.
5.4 Ownership. DBS will acquire, at its own expense, and own the Hosts and the
equipment installed in the Access Points. At the request and cost of LLC
or the relevant Operating Party, DBS will
Final Version of the Systems Operations Agreement
-15-
grant security interests in the equipment in order to secure the rights
of the parties to acquire the equipment or assume, as lessee, any leases
governing such equipment upon termination of this Agreement. DBS can
establish higher priority security interests on the equipment only for
the purpose of obtaining customary financing in order to purchase or
lease the equipment. DBS will use the equipment only for purposes of this
Agreement (see also, Clause 9.2.2).
5.4.1 Annual Contract Review. Once each year during the annual contract
review, DBS will provide to LLC and the Operating Parties, in the form
and with the content requested by LLC and the Operating Parties, a
general description of the hardware and software used in connection with
the the System, provided that such description is at least sufficient to
enable the security interests described in Clause 5.4 to be perfected.
LLC and the Operating Parties have the right to request additional lists
by giving at least four weeks written notice. DBS may charge for
preparing these additional lists on a time and materials basis.
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 or the Eurex Entities, respectively, based on a Change
Request and based on information received from LLC or the Eurex Entities,
respectively, 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 party 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 to EURO 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.
Final Version of the Systems Operations Agreement
-16-
(S) 6
Scope
6.1 Scope. The scope of work in the Project will be defined in Schedule 2.2 and
the Change Requests for LLC and Schedules 1.4 and 9.2b for the Eurex
Entities, as refined in appropriate document Deliverables once such
Deliverables have been Signed Off (see, Section 8). Each member of 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 LLC or
the Eurex Entities, as the case may be. 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 or the Eurex Entities, respectively, reject a
proposed solution that meets all of the requirements of this Agreement in
favor of an alternative, DBS will inform LLC or the Eurex Entities,
respectively, 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 or the Eurex
Entities, respectively, 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 or the Eurex Entities,
respectively, 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 or the Eurex Entities,
respectively, 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 or the Eurex Entities, respectively. 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 or the Eurex Entities, respectively,
under sentence 3. Notwithstanding LLC's or the Eurex Entities' insistence
on their 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 or the Eurex Entities, respectively, 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.
Final Version of the Systems Operations Agreement
-17-
7.2 Timeliness. LLC, the Eurex Entities or the applicable Operating Party,
respectively, 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 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, the Eurex Entities or the applicable Operating Party,
respectively, and DBS must notify each other, the LLC, the CBOT Group and
the Eurex Group 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 an Operating Party has issued under Clause 3.2, the
Operating 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 the
Eurex Entities, respectively, or DBS (or an Operating 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.
Final Version of the Systems Operations Agreement
-18-
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, the Eurex Entities 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, the Eurex Entities or any
other party fails to comply with their obligation under the first sentence
of this Clause, DBS can suspend its performance only for the work for which
payment has been withheld in violation of the first sentence of this
Clause. If an Operating Party has suspended payment only under a Change
Request agreed with regard to an instruction the Operating Party issued
under Clause 3.2, DBS can only suspend performance of its work under that
Change Request. 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 a
party of the Eurex Group is the one 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 contains the critical path schedule governing the
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. This Clause
applies mutatis mutandis to the Eurex Entities.
7.8 No Waiver. Compliance with the Project Problem procedure does not waive any
substantive rights or remedies under this Agreement.
Final Version of the Systems Operations Agreement
-19-
(S) 8
Quality Control
8.1 Deliverables Sign-Off. LLC or the Eurex Entities, respectively, 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 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 or the
Eurex Entities, respectively, 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 or the Eurex Entities, respectively, are 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 from the LLC requires the signature of only one of the LLC's Program
Managers; an LLC Sign-Off requires the signatures of both Program Managers
and a Eurex Deficiency Report as well as Sign-Off requires the signature of
the Program Manager representing the Eurex Group. 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 Clause 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, 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 or the Eurex
Entities, as the case may be, and DBS disagree about the existence of a
Deviation and the disagreement is not resolved by the respective Project
Managers, either DBS or LLC or the Eurex Entities, as the case may be, can
initiate the Problem Report procedure.
Final Version of the Systems Operations Agreement
-20-
8.4 Sub-Project Acceptance. DBS will notify LLC or the Eurex Entities,
respectively, that a Sub-Project is ready for Acceptance after LLC or the
Eurex Entities, respectively, have 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 or the Eurex Entities,
respectively, 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 Schedule 2.2. In accordance with Clauses 8.4.1 through 8.4.3, LLC or the
Eurex Entities, as applicable, will either sign a Sub-Project Acceptance
Form or a Deficiency Report.
8.4.1 When LLC or the Eurex Entities, respectively, submit a Deficiency
Report in connection with a Sub-Project Acceptance, in addition to
the detailed description of any Deviation, LLC or the Eurex
Entities, respectively, 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 or the Eurex Entities, respectively, classify a Deviation as
a Class 1 Deviation during the Test Procedure, LLC or the Eurex
Entities, respectively, 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
Final Version of the Systems Operations Agreement
-21-
using its best efforts prior to resubmitting the Sub-Project for the
Test Procedure. If LLC or the Eurex Entities, respectively, classify
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
or the Eurex Entities, respectively, 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 or the Eurex Entities,
respectively, are 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 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 Master Software
Development Agreement. If LLC or the Eurex Entities, respectively, and DBS
disagree about the classification of a Deviation and the disagreement is
not resolved by the respective Project Managers, either DBS or LLC or the
Eurex Entities, respectively, 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 the
Eurex Entities, respectively, 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 or the Eurex Entities, respectively, will agree
without undue delay). Unless the party receiving the Services
submits a Deficiency
Final Version of the Systems Operations Agreement
-22-
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, 1.4 and 9.2b and the Change Requests for each
Sub-Project will specify the prices ("Project Prices"), reimbursable
expense categories and payment schedules and the member(s) of the LLC Group
who must make the corresponding payments to DBS. The members of the LLC
Group will only reimburse DBS for those categories of expenses identified
in the Schedule 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 LLC expense above a specified limit unless agreed otherwise in
a Change Request. Only the Project Manager representing the Eurex Entities
is required to give his approval with respect to expenses to be paid by the
Eurex Entities.
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 LLC is attached as Schedule 9.2a. The current
German version of the DBS Catalogue of Prices for the portion of the System
used solely by the Eurex Entities is attached as Schedule 9.2b. DBS
represents that the prices in Schedule 9.2a are comparable to the prices
that DBS charges the Eurex Group for the services rendered under the
Service Agreements and will, when adjusted as provided below, continue to
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 [**] the
CBOT 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 in which 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.
Final Version of the Systems Operations Agreement
-23-
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 9.2a
under Clause 9.2.1.
9.3 Invoices. DBS will send invoices concerning the part of the System which
relates solely to the CBOT Group to the LLC and invoices concerning the
part of the System which relates solely to the Eurex Group to the Eurex
Entities. Invoices concerning the part of the System which is shared by
the CBOT Group and the Eurex Group will be apportioned by DBS between the
LLC and the Eurex Entities according to the instruction given by the LLC.
DBS will send invoices directly to the Operating Parties for work performed
for such parties under Change Requests concluded with them. Each invoice
will also include supporting information for the specific line items which
are charged. LLC or the Eurex Entities, respectively, 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 members of the LLC Group 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 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, the Eurex Entities, the
Operating Parties 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
Final Version of the Systems Operations Agreement
-24-
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
confirmation, 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 to any such payments.
Notwithstanding this Clause 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 and the
Eurex Entities.
9.6 Guarantees for Liabilities of LLC. 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, [**] to DBAG and
[**] to SWX unless the Schedules and/or Change Requests provide otherwise
or LLC informs DBS otherwise in writing prior to DBS filing a claim in
arbitration. CBOT guarantees all liabilities of (i) any member of the CBOT
Group owed to DBS and (ii) LLC, where it is acting at the direction of the
CBOT Group under Clause 1.9. DBAG guarantees [**] and SWX guarantees [**]
of any liability owed by a member of the Eurex Group to DBS. These
guarantees constitute independent guarantees (selbstschuldnerische
Burgschaft).
(S) 10
Warranties
10.1 Service Levels, Exclusion of Warranties. Except as set forth in the
Service Levels attached as Schedule 10.1, in any Change Request and in
Clause 10.3, all claims under warranty (Gewahrleistungsanspruche) against
DBS for any defects in a Deliverable that arise after LLC's or the Eurex
Entities' Acceptance of a Sub-Project or with regard to a Service under
Schedules 2.2, 1.4 or 9.2b or a Change Request 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 or Service,
DBS will inform LLC or the Eurex Entities, as applicable, about the claim
and, at the request of LLC or the Eurex Entities, as applicable, assign the
claim to or assert the claim for the
Final Version of the Systems Operations Agreement
-25-
account of, or the appropriate member of the LLC Group as specified by the
LLC or the Eurex Entities, as applicable.
10.2 Subsequent Sub-Projects. For other Sub-Projects, LLC or the Eurex
Entities, respectively (or the relevant Operating Party) 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 and Services
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 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
Final Version of the Systems Operations Agreement
-26-
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 Master Software
Development 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
Master Software Development 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 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 to such member 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 or the Eurex
Entities, respectively, DBS will have the appropriate members in the LLC
Group named as additional beneficiaries under
Final Version of the Systems Operations Agreement
-27-
existing insurance policies; LLC or the Eurex Entities, respectively, 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 or the Eurex Entities, respectively,
and an undertaking by LLC or the Eurex Entities, respectively, or the
Development Parties to reimburse DBS for the corresponding insurance
premiums. LLC or the Eurex Entities, respectively, 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, the Eurex Entities and the Operating Parties, respectively,
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 upon receiving the
consent of the other party, which consent will not be unreasonably
withheld. For each Sub-Project outside of Schedules 2.2 and Schedules 1.4
and 9.2b, DBS, LLC, the Eurex Entities and the Operating Parties,
respectively, will provide a list of Key Personnel in an appropriate
Schedule.
12.3 Transfer. DBS and LLC or the Eurex Entities, respectively, 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.
Final Version of the Systems Operations Agreement
-28-
(S) 13
Proprietary Rights
13.1 Ownership. 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 which DBS creates under this Agreement,
including any Tools in accordance to Clauses 5.1 and 5.2, which are
embedded in the Deliverables, 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 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 prior written
approval of LLC or the Eurex Entities, respectively, 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.
13.3 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 is stored. The documentation will be delivered by
providing each recipient with a CD-ROM or equivalent storage medium on
which the documentation 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).
Final Version of the Systems Operations Agreement
-29-
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 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.
(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
Final Version of the Systems Operations Agreement
-30-
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 Master Software Development
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 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
Master Software Development 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.
Final Version of the Systems Operations Agreement
-31-
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 or the Eurex Entities, respectively, will notify
each other without undue delay if a claim is asserted for which a party
will be seeking indemnification. The right to indemnification also covers
the indemnified party's costs in defending against the claim so long as the
indemnified party coordinates the defense of the claim with the party
against whom indemnification is claimed. A party seeking indemnification is
not permitted to settle the matter so long as the party against whom
indemnification is claimed is in compliance with its obligations under this
Section 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 System by such
member, which may include adopting policies of use by third parties or
entering into user agreements with third parties.
Final Version of the Systems Operations Agreement
-32-
(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 or the Eurex
Entities, respectively, 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 Xxxxx). 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 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 Xxxxx)
generally available under German law.
18.2 Termination for Convenience. The initial term of this Agreement for the
LLC Group is until 30 June 2003. However, any member of the LLC Group can
terminate its participation in this
Final Version of the Systems Operations Agreement
-33-
Agreement without cause with immediate effect even during the initial term.
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 party's instruction to terminate work
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 (e.g.,
Schedule 2.2.a) 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.
A party which has given an instruction to DBS to perform work pursuant to a
Change Request can also terminate the work without cause with immediate
effect under this Clause 18.2.
18.3 Termination of other Agreements. In the event of termination of the
Alliance Agreement or the Software License Agreement or the Master Software
Development 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 Software Development
Agreement for cause (Kundigung aus wichtigem Xxxxx) based on breach by a
member of the Eurex Group, that party can satisfy its obligations
(Erfullungsstatt) to make 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 Operating 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.
Final Version of the Systems Operations Agreement
-34-
18.4 Continuation. If any work under Schedules 2.2, 1.4, or 9.2b 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 LLC, the Eurex
Entities and the Operating Parties for the purpose of providing the
Services related to the System that were provided by DBS to the applicable
party prior thereto and any new services requested by LLC, the Eurex
Entities or the Operating Parties that may be required to facilitate the
transfer of the System to LLC, the Eurex Entities and/or the Operating
Parties or a third party service provider, as applicable, including,
providing to LLC, the Eurex Entities and the Operating Parties or third
party personnel training in the implementation, operation and maintenance
of the System (collectively, the "Termination Assistance Services") in
accordance with the following:
18.5.1 At no additional cost, DBS will provide to LLC, the Eurex
Entities and the Operating Parties and any designated third party
service provider: (i) in writing, to the extent available,
applicable requirements, standards, policies, operating
procedures and other documentation relating to the
implementation, operation and maintenance of the System; and (ii)
necessary access to the System and the hardware, equipment and
facilities related thereto.
18.5.2 If and to the extent requested by LLC, the Eurex Entities and the
Operating Parties, DBS will assist LLC, the Eurex Entities and
the Operating Parties in developing a plan which will specify the
tasks to be performed by the parties in connection with the
Termination Assistance Services and the schedule for the
performance of such tasks.
18.5.3 DBS will provide the Termination Assistance Services for as long
as an Operating Party reasonably requests for the orderly
transition of the Services (the "Termination Assistance Period"),
as agreed upon by LLC, the Eurex Entities and the Operating
Parties, as the case may be, and DBS, including prices no worse
to LLC, the Eurex Entities and the Operating Parties, as
applicable, than those for comparable Services prior to
termination.
18.5.4 Following the Termination Assistance Period for a period not to
exceed 12 months thereafter, and to the extent not already
complied with, DBS will: (i) answer all reasonable and pertinent
verbal or written questions from LLC, the Eurex Entities and the
Operating Parties regarding the Services on an "as needed" basis
as agreed upon by LLC, the Eurex Entities and the Operating
Parties and DBS.
18.5.5 Upon request from LLC, the Eurex Entities and the Operating
Parties, and to the extent permitted by third party contracts,
DBS will do the following:
Final Version of the Systems Operations Agreement
-35-
(a) As part of the winding down or transfer of the
implementation, operation and maintenance of the System, LLC
or the Eurex Entities, as applicable, can require DBS to
sell to LLC and the Eurex Entities, respectively, or their
designees some or all of the fixed and current assets in the
System which are used by LLC or the Eurex Entities,
respectively. DBS can require LLC, or the Eurex Entities, as
applicable, to purchase some or all of the fixed and current
assets in the System, which are used by LLC or the Eurex
Entities, respectively, if DBS cannot reasonably use the
fixed assets elsewhere. The price for fixed assets will be
their book value as shown in DBS's books but in any event no
more than the fair market value. The price for current
assets will be their fair market value. DBS will transfer
ownership of the corresponding assets to LLC or the Eurex
Entities, as applicable, in "as is" condition free of
encumbrances immediately on receipt of payment; LLC or the
Eurex Entities, as applicable, are responsible for taking
delivery of the assets where they are located on the date of
transfer. DBS and LLC or the Eurex Entities, as applicable,
can exercise their options to sell/purchase under this
Clause 18.5.5 up to the conclusion of the winding down or
transfer of the System.
(b) DBS will transfer or assign, upon LLC, the Eurex Entities or
an Operating Party's request, any third party contracts
applicable to the implementation, operation and maintenance
of the System to LLC, the Eurex Entities or such Operating
Party or its designee, on terms and conditions acceptable to
all applicable parties.
18.5.6 LLC or the Eurex Entities, as applicable, will hold DBS harmless
from the expenses for leased lines and leases for premises and
equipment and other expenses relating to using such items by the
applicable parties and charged to DBS by third parties and
subcontractors until the end of the term of the agreement with
the respective party (except where LLC or the Eurex Entities, as
applicable, have terminated this Agreement for just cause
(Kuendigung aus wichtigem Xxxxx). The right of DBS to
indemnification under the preceding sentence does not apply if
the third party or subcontractor charges expenses to DBS due to
DBS having violated its obligations to the third party or
subcontractor. Unless LLC or the Eurex Entities, as applicable,
grants its or their prior written consent, the term of a line
agreement will not exceed [**], and a lease agreement for
premises will not exceed an initial fixed term of [**]. DBS will
use its best efforts to have the respective third party or
subcontractor consent to LLC or the Eurex Entities, as
applicable, or a third party designated by LLC or the Eurex
Entities, as applicable, assuming the agreements with DBS unless
LLC or the Eurex Entities, as applicable, instruct DBS otherwise.
Final Version of the Systems Operations Agreement
-36-
18.5.7 DBS will provide all necessary Termination Assistance Services on
a time and materials basis, monthly in arrears. Clause 7.5
applies.
18.6 Termination by DBS. DBS can terminate this Agreement without cause by
giving at least 12 month's written notice to LLC effective on 30 June 2004
or any subsequent 30 June or 31 December. DBS cannot terminate a Change
Request concluded pursuant to Clause 3.2 or a Change Request agreed with
LLC or the Eurex Entities, as applicable, unless DBS also terminates this
Agreement; Clause 18.4 will continue to apply.
(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 or the Eurex Entities, as applicable, and any
notice, request or consent by the other parties must be transmitted by LLC
or the Eurex Entities, as applicable, 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 Master
Software Development Agreement) constitutes the entire agreement between
DBS, on the one hand, and the members of 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 (including
amendments to this Clause 19.2) must be in writing to be effective. This
also applies to an amendment to this Clause on written form.
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
Final Version of the Systems Operations Agreement
-37-
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 Agreement 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 xxxxx xxxxx 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.
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
Final Version of the Systems Operations Agreement
-38-
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.
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.
Final Version of the Systems Operations Agreement
-39-
19.9.5 If an arbitration under this Agreement coincides with an arbitrable
claim under the Master Software Development 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.
Final Version of the Systems Operations Agreement
Deutsche Borse Aktiengesellschaft Swiss Stock Exchange
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx /s/ X. Xxxxxxx /s/ X.X. Xxxxx
By: ___________________________________ By: ____________________________
July 20, 2000 18.8.2000
Date: _________________________________ Date: __________________________
Final Version of the Systems Operations Agreement
-2-
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
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
By: ___________________________ By: __________________________
Date: __________________________ Date: _________________________
Ceres Alliance L.L.C. Eurex Frankfurt AG
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx Xxxxxx
By: ___________________________ By: __________________________
July 20, 2000
Date: __________________________ Date: _________________________
Eurex Zurich AG Eurex Clearing AG
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
By: ___________________________ By: __________________________
July 20, 2000 July 20, 2000
Date: __________________________ Date: _________________________
CBOT/EUREX ALLIANCE, L.L.C. Deutsche Borse Systems AG
/s/ Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx /s/ Illegible
By: ___________________________ By: __________________________
July 20, 2000
Date: __________________________ Date: _________________________
Final Version of Schedules to the Systems Operations Agreement
-1-
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.
Final Version of Schedules to the Systems Operations Agreement
-2-
"DBAG" is defined in the initial paragraph of this
Agreement.
"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 the signing date.
"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.
Final Version of Schedules to the Systems Operations Agreement
-3-
"Exchanges" has the meaning set forth in Article I of the
Alliance Agreement.
"Facilities" is defined in Clause 3.4.5.
"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.
"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, the members of the Eurex Group and the
members of the 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.
"Master Software is defined in the Recitals, Clause D.
Development 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.
"Operating Parties" are Eurex Zurich, Eurex Frankfurt, Eurex Clearing
and, for the CBOT, LLC.
"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 to
Rights" 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.
Final Version of Schedules to the Systems Operations Agreement
-4-
"Project" is defined in Clause 2.1.
"Project Prices" is defined in Clause 9.1.
"Project Problem" is defined in Clause 7.1.
"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.
"Problem Report" is defined in Clause 7.3.
"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 As 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 means the Services Completion Notice described in
Notice" 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 is defined in the Recitals, Clause A.
Agreement"
"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.
Final Version of Schedules to the Systems Operations Agreement
-5-
"Tasks" is defined in Clause 2.4.
"Termination Assistance is defined in Clause 18.5.
Services"
"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.
Final Version of Schedules to the Systems Operations Agreement
-1-
Schedule 1.4
------------------------------------------------------------------------------------------------------------------------------------
Impact on
N(degree) Name Decision Current ------------------------------------------------------- Date of Billing start
Status one-off project fixed monthly variable monthly Signature
cost in EUR cost in EUR cost in EUR
------------------------------------------------------------------------------------------------------------------------------------
13 [**] Open Jan 00
------------------------------------------------------------------------------------------------------------------------------------
14 [**] Eurex GL Signed [**] [**] 30.6.00 Sep 00
------------------------------------------------------------------------------------------------------------------------------------
15 [**] Eurex GL Signed [**] 30.6.00 Jun 00
------------------------------------------------------------------------------------------------------------------------------------
16 [**] Eurex GL Signed [**] 30.6.00 Jun 00
------------------------------------------------------------------------------------------------------------------------------------
17 [**] Eurex GL Signed [**] 30.6.00 Apr 00
------------------------------------------------------------------------------------------------------------------------------------
18 [**] Open Jun 00
------------------------------------------------------------------------------------------------------------------------------------
19 [**] Eurex GL Signed [**] [**] 30.6.00 Sep 00
------------------------------------------------------------------------------------------------------------------------------------
20 [**] Eurex GL Signed [**] [**] [**] 4.7.00 Okt 00
------------------------------------------------------------------------------------------------------------------------------------
21 [**] Eurex GL Signed [**] [**] [**] 4.7.00 Okt 00
====================================================================================================================================
Total [**] [**] n/a
------------------------------------------------------------------------------------------------------------------------------------
Change Requests 20 and 21 will be changed into JV Change Requests. The
associated costs will be allocated to LLC and Eurex as presented in MC Meeting
13 July 2000.
Final Version of Schedules to the Systems Operations Agreement
-1-
SCHEDULE 2.1
Overview of System Usage
* Backend () Backend
Chicago Frankfort
Router Router
* Access @ Access @ Access () Access
Point Point Point Point
* Part of the System which relates solely to the CBoT
@ Part of the System which relates solely to the Eurex
() Part of the System which is shared by the CBoT Group and the Eurex Group.
Final Version of Schedules to the Systems Operations Agreement
-1-
SCHEDULE 2.2
Insert 'Schedule 2.2.PPT'
NOTE: The Schedule represents the DBS-proposal "as of January 31". Any detail,
e.g. scope, prices, timelines etc., may have been already redefined in the
Agreement, other Schedules, existing Change Requests or written confirmations.
In any case the definitions in the Agreement, other Schedules, Change Requests
or written confirmations will apply.
Payment Schedule for System Operations Agreement
all numbers in Euro Actuals Actuals Actuals Actuals Actuals Actuals Plan Plan Plan Plan Plan Plan
-----------------------------------------------------------------------------------------------------------------------------------
Project Total in 2000 Jan 00 Feb 00 Mrz 00 Apr 00 Mai 00 Jun 00 Jul 00 Aug 00 Sep 00 Okt 00 Nov 00 Dez 00
-----------------------------------------------------------------------------------------------------------------------------------
System Operations
Agreement [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Exchange Setup [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Line Dpt. Effort [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
DBS Part [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Project Management [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Travel Expenses [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Operations [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Customer Service [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Training [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Host Operations [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
Networks [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
-----------------------------------------------------------------------------------------------------------------------------------
Final Version of Schedules to the Systems Operations Agreement
-2-
JV Change Requests
------------------------------------------------------------------------------------------------------------------------------------
N(degree) Name Affected Decision Impact on
Release -------------------------------------------
Current Estimated Cost Actual Effort in Est. Date of Signature
Status in EUR EUR (wd)
------------------------------------------------------------------------------------------------------------------------------------
12 [**] 1.0 MOC Approved [**] 25.08.2000
------------------------------------------------------------------------------------------------------------------------------------
19 [**] 1.0 MOC Approved [**] 25.08.2000
------------------------------------------------------------------------------------------------------------------------------------
22 [**] 1.0 MOC Approved [**] 25.08.2000
------------------------------------------------------------------------------------------------------------------------------------
23 [**] 1.0 MOC Approved [**] 25.08.2000
------------------------------------------------------------------------------------------------------------------------------------
Cost for CR 19 are [**].
Final Version of Schedules to the Systems Operations Agreement
-1-
SCHEDULE 2.2
1. "DBS Part", "Project Management" and "Line Dpt. Effort" 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, Line Dpt. Effort or Project
Management. The most current status is presented twice a month to the
Management Committee of the LLC. 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 for JV Release 1.0 will be covered by the Systems Operations
Agreement (incl. software fixing).
2. "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 LLC. 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.
The estimates under the section Operations are based on Schedule 9.2a and the
number of members and their locations. These estimates will vary with the number
of actually connected members over time as set forth in the Schedule 9.2a.
Final Version of Schedules to the Systems Operations Agreement
-2-
Schedule 2.2a
Charges for Termination for Convenience
If CBOT terminates the work under Schedule 2.2 for convenience pursuant to
Clause 18.2, the following charges will apply rather than (S) 649 German Civil
Code; CBOT 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
2001, the charge will be [**].
2. If CBOT gives notice of termination for convenience after 30 June 2001 and
prior to or on 30 June 2002, the charge will be [**].
3. If CBOT gives notice of termination for convenience after 30 June 2002 and
prior to or on 30 June 2003, the charge will be [**]. This charge does not
apply if CBOT has given at least 12 months notice effective on 30 June
2003.
4. If CBOT gives notice of termination for convenience effective during any
subsequent year ending 30 June, the charge will be [**] unless CBOT has
given at least twelve months notice effective on any 31 December or 30
June; in this case no charge will apply.
Final Version of Schedules to the Systems Operations Agreement
-1-
SCHEDULE 3.5
Program Managers and Substitutes
LLC Eurex DBS
------------------------------------------------------------------------------------------------------------------------------
Program Manager Xxx Xxxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------
Substitute Tbd Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------
Final Version of Schedules to the Systems Operations Agreement
-1-
SCHEDULE 3.6.2
Steering Committee
LLC DBS
---------------------------------------------------------------------------------------------------------------------
Program Manager Xxx Xxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------
Xxxx XxXxxxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxxx Dr. Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------
-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 16th 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.
-3-
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.
[TOPOLOGY AND COMMUNICATION RELATIONSHIP CHART]
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).
-4-
. Connection of the Access Points to the backend:
The local connections of the Participant Installations within a
geographic area are gathered together at "Access Points" consisting of
two communications servers and four routers (maintained in a redundant
structure of one server and two routers each at two physically
separate locations). An Access Point is a logical unit having a
maximum capacity of [**]. Accordingly, up to a number of [**] can be
connected to one Access Point. 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 (general Access Participant
urban area) Location Point Installation
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.
-5-
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
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,
-6-
. 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.
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.
[ORGANIZATIONAL CHART]
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).
-7-
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:
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.
-8-
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 the relevant Operating
Party notifies DBS in writing that the Participant connection must be
cancelled.
B. Technical Helpdesk (First Level Support) and Change Management
Technical Helpdesk includes the following services:
. solving technical problems in the everyday operation of the Member
Integrated System Server (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.
-9-
C. Training
Technical Training and Technical Update Training will be offered at
the training locations in 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",
. 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
-10-
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.
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 [**] [**]
-11-
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 [**].
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:
-12-
Location Address Number of Training
Workstations
Xxxxxx 00 Xxxxxx Xxxxxx 12
UK - Xxxxxx XX0X 0XX
Chicago 000 Xxxxx XxXxxxx Xxxxxx 00
XXX - Xxxxxxx, XX 00000
Chicago 000 Xxxx Xxxxxxx Xxxx. 00
XXX - Xxxxxxx, XX 00000
The training facilities located in 000 Xxxx Xxxxxxx Xxxx., Xxxxxxx, XX
00000 are provided by LLC.
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 (LaSalle Street) [**] [**]
Chicago (West Xxxxxxx) [**] [**]
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. [**]
A. Development Frontend Hardware and Software Infrastructure:
. provision of desktop development and office communication frontend
hardware and software (including servers),
. setup of the workstations,
-13-
. removal management,
. creation of specific software images,
. installation of new server software releases,
. installation of new desktop software releases,
. system management of the servers,
. hardware and software support of the desktop workstations.
B. Development Backend Hardware and Software Infrastructure:
. installation of the required software on the backend systems,
. monitoring the architecture and the application,
. permanent control of the system setups,
. conclusion and administration of the required license and
maintenance agreements.
C. Performance Test Environment:
The performance test environment represents a scaled-down image of the
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. [**]
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
-14-
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.
-1-
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 10.1
Service Levels
This schedule covers only the service levels for the Exchange in Chicago. The
----
current service levels for the Exchanges in Europe are set forth in the DBS
Price and Service Catalogue of 6 December 1999 (see Schedule 9.2b), which will
continue to apply until new service levels are agreed between Eurex Zurich,
Eurex Frankfurt and Eurex Clearing on the one hand and DBS on the other hand.
These Service Levels are preliminary and will be adjusted during discussions in
the autumn of 2000 after information about the behaviour of the system can be
gathered. Prices will not be increased if this information supports higher
service levels without the provision of additional services.
1. Service Times
1.1 System
The System will be operated on all trading days of the Exchange in Chicago
for the following hours of operation:
Operation Time
General operation (including batch runs) from Sunday 7:00 p.m. to
Friday 8:00 p.m.
(Chicago time)
Online operation (batch runs are, therefore, 8:00 p.m. on each trading
possible from 4:00 p.m. on a trading day to day to 4:00 p.m. on the
8:00 p.m. on a trading day) next trading day (Chicago
time)
Notwithstanding the foregoing chart, the System will not be available for
batch or online work from 8:00 p.m. on Friday to 7:00 p.m. (Chicago time)
on Sunday; these times are intended for regularly scheduled maintenance.
1.2 Technical Helpdesk
The Technical Helpdesk is manned from Sunday 7:00 p.m. to Friday 8:00 p.m.
(Chicago Time).
-2-
2. System Availability
2.1 Calculation of Actual Availability
The actual availability of the System during the scheduled service times
set forth in Clause 1.1 will be calculated for each calendar month
according to the following formula:
( Sum [Down Time for Each MISS] )
AV = 100%* (1- ______________________________ )
( MISSs* 1,200 min* Trading days )
Variable Description
AV Availability of the System in percent in
respective month
Down Time for Each MISS minutes in each calendar month for which
each MISS is not in operation during the
Service Times for online operations
#MISSs Total number of connected MISSs in
production in the respective month
#Trading days Number of trading days in respective
month
Lack of availability resulting from poor performance by the
telecommunications carriers will not be taken into account when calculating
actual availability. However, if DBS receives any indemnification from the
carriers, this will be for the account of CBOT or its designee.
Lack of availability due to data errors by parties other than DBS will not
be taken into account.
2.2 Performance Credits
If the actual availability (AV) of the System is less than [**] in any
calendar month commencing with the first full calendar month after the
System has been placed in production (currently scheduled for 25 August
2000), DBS will pay the following Performance Credits to CBOT or a party
designated by CBOT.
Actual Availability Performance Credit for each [**]% (or
in a Calendar Month portion thereof)
between [**]% and [**]% [**]
-3-
between [**]% and [**]% [**]
2.3 Early Termination Right
If the actual availability (AV) is less than [**]% in any two months during
any four month period, or if the actual availability is less than [**]% in
any single month, CBOT (or the party operating the Exchange in Chicago) can
terminate its participation in the Systems Operations Agreement by giving
written notice of termination to DBS within two weeks after the conclusion
of the Project Problem procedures concerning the lack of availability. The
notice will take effect at the end of the first full calendar month
following the month in which the notice is received. Such notice will
constitute termination for cause (Clause 18.1).
3. Technical Helpdesk Availability
3.1 Calculation of Actual Technical Helpdesk Availability
The actual Technical Helpdesk Availability (HA) during the scheduled
service times set forth in Clause 1.2 will be calculated for each calendar
month according to the following formula:
( # Successful Calls )
HA = 100%* (1- _________________________ )
( # Total Number of Calls )
Variable Description
HA actual Availability of the Technical
Helpdesk in percent in respective month
#Successful Calls Number of calls taken by the Technical
Helpdesk agents in the respective month
#Total Number of Calls Total Number of calls to the Technical
Helpdesk in the respective month
The number of Successful Calls and the Total Number of Calls will be
measured by DBS's telephone equipment. A Successful Call means that the
person requesting service is
. connected directly with an English speaking staff member of the
Technical Helpdesk, or
-4-
. connected with an automated voice message in English which
provides sufficient information about the type, extent and
probable duration of a System failure (e.g., failure of the
backend), or
. conducted into a waiting loop and is informed by an automated
voice message in English that currently all agents are busy and
the caller will be connected as soon as possible with the next
available agent. If the person requesting service hangs up more
than one minute after the automated voice message has concluded,
the attempted contact will be registered in the Total Number of
Calls but not in the number of Successful Calls; if the person
requesting service hangs up before the minute has passed, the call
will not be registered in the Total Number of Calls. The person
requesting service is connected to an automated voice message
which provides sufficient information about the type, extent and
probable duration of a System failure (e.g. failure of the
backend) with a duration of more than one minute, these calls will
also be registered in the Total Number of Calls even if the call
was not connected to a staff member.
3.2 Performance Credits
If the actual availability (HA) of the Technical Helpdesk in any calendar
month is less than [**]% in any calendar month commencing with the first
full calendar month after the System has been placed in production
(currently scheduled for 25 August 2000), DBS will pay the following
Performance Credits to CBOT or a party designated by CBOT.
Actual Availability Performance Credit for each [**]% (or
in a Calendar Month portion thereof)
Between [**]% and [**]% [**]
Between [**]% and [**]% [**]
4. System Performance
4.1 Performance Criteria
DBS will provide a performance system for trading products electronically.
The System's performance will be measured as the average host roundtrip
time per 20h-trading day and the time needed to process [**] of all
transactions. The host roundtrip time is measured as the time a
transaction needs for processing and transmission from entering the backend
until leaving the backend.
-5-
The current performance criteria is set to [**] seconds for the average
host round trip time per 20-hour trading day and [**] seconds for [**] of
all transactions.
After the System is in production DBS and LLC will annually agree on the
performance criteria on the basis of the current transaction volumes,
number of Participants, number of products, number of series and other
factors to be defined during the parties' annual negotiations.
5. Delivery Times
5.1 New Access Points
For establishing an additional Access Point consisting of two
communications servers and four routers (maintained in a redundant
structure of one server and two routers each at two physically separate
locations) within the same premises as an existing Access Point, the
maximum delivery time is [**]. Delivery times for additional Access
Points in new premises should be agreed in the corresponding Change
Requests, although this may not always be possible due to circumstances at
the location (e.g., availability of leased space, local equipment
suppliers' delivery times, availability of local subcontractors). If an
agreed delivery time for an Access Point is exceeded, DBS will pay to the
party(ies) who ordered the Access Point a Performance Credit of [**] for
each commenced week up to a total of [**].
6. General Assumptions
All Service Levels are based on the following volume and transaction
assumptions.
. No Market makers/quotes
. No unlimited feed by electronic order routing systems
. No batch processed order routing systems; only continously
loaded order routing systems
. [**] Members at maximum
. [**] Futures Products at maximum
. [**] Options Products at maximum
. [**] Series per Option at maximum
-6-
. [**] Orders/sec (peak) in the most liquid futures product at
maximum
. [**] Orders/sec (peak) in all futures product at maximum
. [**] Orders/sec (peak) in the most liquid options product at
maximum
. [**] Orders/sec (peak) in all options product at maximum
. [**] Orders/sec (average per 20h-trading day) in the most liquid
futures product at maximum
. [**] Order/sec (average per 20h-trading day) in all futures
product at maximum
. [**] Orders/sec (average per 20h-trading day) in the most liquid
options product at maximum
. [**] Order/sec (average per 20h-trading day) in all options
product at maximum
. [**] Full-trades/sec (peak) in the most liquid product at
maximum
. [**] Full-trades/sec (peak) in all products at maximum
. [**] Full-trades/sec (average) in the most liquid product at
maximum
. [**] Full-trade/sec (average) in all products at maximum
. [**] Orders/20h-trading day at maximum
. [**] Full-trades/20h-trading day at maximum
. Only regular procedure trading days will be taken into account,
e.g. trading days with market supervision or non system
interface induced problems will not be taken into account.
DBS will monitor whether the operation of the System is within the above
volumes and transaction assumptions. DBS will report monthly to LLC and
Eurex Zurich about the monitored System information. If the volumes and
transaction assumptions are exceeded in any month and if this causes non-
compliance with a service level, DBS will not be liable for any payments
under this Schedule 10.1 relating to the non-compliance. However, DBS will
propose measures to
-7-
accomodate increased volumes and changes in the transaction assumptions in
order to again reach the guaranteed service levels.
The parties will conduct annual contract reviews and will examine the
historical production data which are then available. Based on these
reviews, the parties will adjust the agreed service levels.
-1-
SCHEDULE 12.2
List of Key Personnel
LLC DBS
Program Manager Xxx Xxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxxxxxx
xxx Xxx Xxxxxx Xxxx
xxx Xxx Xxxxxx Xxxxxx
xxx Xxx Xxxxx Xxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxx
Dr. Gerd Kobschall
Xx. Xxxxx Xxxxxx
