Exhibit 10.41
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
EXECUTION
DEVELOPMENT SERVICES AGREEMENT
This Development Services Agreement (this "Agreement"), dated as of March
5, 2003, is among LIFFE ADMINISTRATION AND MANAGEMENT, a company incorporated in
England and Wales ("LIFFE"), and BOARD OF TRADE OF THE CITY OF CHICAGO, INC., a
Delaware corporation (the "CBOT"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in Section 1.
RECITALS
A. LIFFE has devised and developed an automated derivatives trading and
order matching system known as "LIFFE CONNECT(TM)" to facilitate the trading of
certain securities, futures, and options contracts. The CBOT desires LIFFE's
assistance in implementing LIFFE CONNECT for use by the CBOT and in commencing
live trading of CBOT products via LIFFE CONNECT.
B. LIFFE and the CBOT have entered into a Software License Agreement, dated
January 10, 2003 (the "Software License Agreement"), whereby LIFFE has agreed to
grant to the CBOT a license in respect of certain software components of LIFFE
CONNECT, together with (i) any additional software that may be developed
pursuant to any Development Services Agreement and/or Managed Services Agreement
that may be entered into by LIFFE and the CBOT, and (ii) any Upgrades as LIFFE
may provide pursuant to any Managed Services Agreement between LIFFE and the
CBOT.
C. LIFFE and the CBOT have agreed upon a description of (i) the
functionality of the electronic trading platform required by the CBOT Electronic
Exchange, and (ii) all modifications to existing LIFFE CONNECT software
necessary to achieve such functionality. The CBOT has requested LIFFE, and LIFFE
has agreed subject to the terms and conditions hereof, to develop and deliver to
the CBOT such software and related documentation.
D. In addition, LIFFE has agreed, subject to the terms and conditions
hereof, to provide to the CBOT a variety of additional services supporting the
creation, implementation and future operation of LIFFE CONNECT as a platform for
the CBOT Electronic Exchange, including the procurement and/or delivery to
locations agreed upon by the Parties of hardware necessary to support the
Software, testing of Software, assistance with the CBOT's acceptance testing,
training of CBOT staff in respect of certain Components, and assisting the CBOT
in providing Market Participants with technical access to the CBOT Electronic
Exchange.
E. This Agreement is supplemental to and shall be read in conjunction with
the Software License Agreement.
In consideration of the recitals and the mutual covenants and agreements
hereinafter set forth, the Parties hereto (each a "Party" and collectively the
"Parties") agree as follows:
AGREEMENT
1. Definitions
In this Agreement, the following expressions shall mean, respectively:
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
"AAA" shall have the meaning set forth in Section 17.3.
"AAA Rules" shall have the meaning set forth in Section 17.3.
"Accepted" means issuance by the CBOT of an Initial Acceptance Certificate
or a Final Acceptance Certificate, as appropriate, in relation to a
Component.
"Acceptance Criteria" means the criteria derived from the Specifications
that must be met by each Component in order to pass the relevant Acceptance
Test.
"Acceptance Test" means a test comprised of the Acceptance Criteria, Test
Cases and Test Data, and carried out in accordance with the relevant Test
Plan and Section 4.
"Advance Fee" means any interest or other financing charges due pursuant to
any Financing Agreement.
"Affiliate" means any Person that, directly or indirectly, controls, is
controlled by or is under common control with a specified Person.
"Agreement" shall have the meaning set forth above.
"API" means the LIFFE CONNECT application programming interface from a
Trading Application to the Trading Host.
"Arbitration Fees" shall have the meaning set forth in Section 17.3.7.
"Business Day" means any calendar day other than any Saturday, Sunday, U.S.
bank holiday, and U.K. public or bank holiday.
"Catch Up Period" shall have the meaning set forth in Section 2.3.3.
"CBOT Controlled Sites" means those Equipment Installation Sites comprising
the CBOT's Premises and premises owned or controlled by Market
Participants.
"CBOT Defect" shall have the meaning set forth in Section 4.3.2.2.
"CBOT Deliverables" shall have the meaning set forth in Section 4.1.
"CBOT Electronic Exchange" means the electronic facility for the trading of
derivatives products listed from time to time by the CBOT in its capacity
as a derivatives exchange.
"CBOT Indemnitees" shall have the meaning set forth in Section 15.1.
"CBOT's Premises" means those locations owned or controlled by the CBOT.
"CBOT's Property" shall have the meaning set forth in Section 12.2.
"CBOT Technology" means any software, equipment or other technology that is
(i) owned by the CBOT, (ii) licensed to the CBOT by a Person other than
LIFFE, or (iii) used by a clearing organization to process or clear
contracts traded on the CBOT Electronic Exchange and neither owned by nor
licensed to LIFFE or any Person acting on LIFFE's behalf.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
"Change Control Procedures" shall have the meaning set forth in Section
2.4.
"Change Request" shall have the meaning set forth in Section 2.4.
"Charges" shall have the meaning set forth in Section 8.1. "Charge Rates"
shall have the meaning set forth in Section 8.1.
"Claim" shall have the meaning set forth in Section 15.1.
"Components" means those software applications identified in Part 1 of
Schedule C.
"Confidential Information" shall have the meaning set forth in Section
13.1.
"Connection Service Charges" shall have the meaning set forth in Section
8.1(b).
"Control" or "control" means the possession, direct or indirect, of fifty
percent (50%) or more of the equity interests of another Person or the
power otherwise to direct or cause the direction of the management and
policies of such other Person, whether through ownership of voting
securities, by contract or otherwise.
"Core Network" means the shared service comprising data circuits and
hardware, including routers, repeaters, hubs, cabinets, monitors, and
telecommunication lines, used to provide connectivity between (i) LIFFE
data centres and (ii) points of presence in London, Paris, Chicago, New
York, Amsterdam and those locations LIFFE deems appropriate, to which
points of presence connectivity to Equipment Installation Sites will be
provided.
"Development Service Charges" shall have the meaning set forth in Section
8.1(c).
"Disputes" shall have the meaning set forth in Section 17.1.
"Documentation" means, collectively, (i) the documentation set forth in
Part 2 of Schedule C, which includes all documentation created pursuant to
Section 2.1(c), and (ii) any operating manuals, user instructions,
technical literature, and other documentation supplied by LIFFE to the CBOT
for purposes of assisting the CBOT's use of and/or access to the Software.
"Effective Date" shall mean February 28, 2003.
"Equipment" means the computer hardware, including processors, memory,
discs, screens, printers, routers, and hubs, to be used with the Software,
as set forth in Schedule E or as otherwise agreed upon by the Parties.
"Equipment Service Charges" shall have the meaning set forth in Section
8.1(a).
"Equipment Installation Sites" shall have the meaning set forth in Section
2.1(a).
"eSpeed" means eSpeed, Inc., a corporation organized and existing under the
laws of the State of Delaware, having a place of business at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Evidence" means evidence of a defect in a Component or the Software as a
whole, including the date the defect is detected; the environment (test or
production) in which the defect occurred; the business impact of the
defect; Component or subsystem - with the version number in which the
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
defect is detected; the transaction being executed upon detection of the
defect; the screen name if the defect can be evidenced by an online
component; any inputs (including standing data) evidencing the defect;
expected outputs/behavior; outputs (such as messages and message logs)
evidencing the defect; whether the market mode at the time of the defect is
repeatable (yes/no); any stack trace and core dumps evidencing the defect;
the scenario that caused the failure (to be in a step by step format); the
settings of the user defined fields within the application (price limit
values, etc.); and any information, logs or traces evidencing the defect
which are generated by any third party application.
"Final Acceptance Certificate" means a certificate issued by the CBOT in
accordance with Section 4.4, which certificate acknowledges that the
Software is ready to be made available for use in a real time live trading
environment, and may note any subsequent obligations agreed by the Parties.
"Financing Agreement" shall have the meaning set forth in Section 8.4.
"Force Majeure Event" means any cause beyond a Party's reasonable control,
including, but not limited to, any flood, riot, fire, judicial or
governmental action, act of war or terrorism, and labor disputes.
"Go Live Date" means the earliest date, agreed by the Parties, upon which
Software is made available for use in a real time live trading environment.
"ICDR" shall have the meaning set forth in Section 17.3.
"Independent Software Vendors" and "ISVs" mean those independent software
providers who develop systems via which access to the Trading Host may be
achieved.
"Initial Acceptance Certificate" means a certificate issued by the CBOT in
accordance with Section 4.3.
"Integration Testing" shall have the meaning set forth in Section 2.1(i).
"Interface Sublicense Agreement" shall have the meaning set forth in the
Software License Agreement.
"Interfaces" means, collectively, the API, the trade data interface, audit
data interface, standing data interface, market data interface and
miscellaneous file transfer interface.
"IRS" shall have the meaning set forth in Section 8.2.
"Key Milestone" shall have the meaning set forth in Section 2.3.2.
"License" shall have the meaning set forth in Section 2 of the Software
License Agreement.
"Licensed Technology" means, collectively, (a) the object code versions of
the Software and (b) the Documentation, licensed to the CBOT pursuant to
the Software License Agreement.
"LIFFE CONNECT" means the electronic trading platform which is proprietary
to LIFFE, as such trading platform may be modified from time to time.
"LIFFE Indemnitees" shall have the meaning set forth in Section 15.2.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
"LIFFE Project Personnel" means the individuals engaged by LIFFE to perform
its obligations under this Agreement.
"LIFFE Property" shall have the meaning set forth in Section 12.1.
"Losses" shall have the meaning set forth in Section 15.1.
"Malicious Code" means any computer virus, Trojan horse, worm, time bomb,
or other similar code or hardware component designed to disrupt the
operation of, permit unauthorized access to, erase, or modify the Licensed
Technology or any operating system upon which the Licensed Technology is
installed, excluding security keys or other disabling elements of any
Software, which elements are designed to effect restrictions on the length
of time during which any Software may be used or the number of persons who
may use such Software.
"Managed Services Agreement" means any agreement that may be entered into
by LIFFE and the CBOT subsequent to the Effective Date, pursuant to which
LIFFE agrees to provide the CBOT services relating to the operation and
support of the CBOT Electronic Exchange.
"Market Data" means any representation that conveys, either directly or
indirectly, information and data pertaining to futures and/or options
traded on the CBOT Electronic Exchange including, but not limited to,
market prices of such futures or options, opening and closing price ranges,
high-low prices, settlement prices, estimated and actual contract volume,
information regarding market activity including exchange for physical
transactions, best bid, best offer, the size of the best bid or best offer
or a discrete number of best bids and best offers then pending on the CBOT
Electronic Exchange along with the corresponding size of each bid and
offer.
"Market Participant" means any Member, ISV, QV, clearing organization or
other Person who participates in, accesses or obtains information from the
CBOT Electronic Exchange via an Interface with the Equipment. For the
avoidance of doubt, (a) unless otherwise specified by the Parties in
writing, the Board of Trade Clearing Corporation is not a Market
Participant; and (b) a Person who interfaces with the CBOT Technology, but
does not interface with the Equipment via an Interface, is not a Market
Participant.
"Market Participant Testing" shall have the meaning set forth in Section
2.1(k).
"Material Defect" means a defect which results in a failure of the key
functionality of a Component to materially conform to the Specifications.
For the avoidance of doubt, "Material Defect" shall not include any
failures of a cosmetic or trivial nature, failures which do not materially
impact upon the use of the Component, or failures with respect to which a
viable workaround has been identified.
"Media" means the media on which the Software and the Documentation are
recorded or printed, as provided by LIFFE to the CBOT.
"Member" means any Person authorized by the CBOT to trade on the CBOT
Electronic Exchange.
"Milestones" shall have the meaning set forth in Section 2.3.
"Non-Restricted Documentation" means all Documentation other than
Restricted Documentation, including the Documentation identified in Part
2(a) of Schedule C.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
"Operating System" means the operating system listed in Part B of Schedule
F on which the Software may be used or such other operating system as may
be approved by LIFFE from time to time.
"Out of Pocket Expenses" shall have the meaning set forth in Section
8.1(d).
"Party" and "Parties" shall have the meanings set forth above.
"Payment Date" shall have the meaning set forth in Section 8.3.
"Person" means an individual or a partnership, corporation, limited
liability company, trust, joint venture, joint stock company, association,
unincorporated organization, government agency or political subdivision
thereof, or other entity.
"Project Manager" means that individual responsible on behalf of LIFFE or
the CBOT, as applicable, for the day to day management of the provision of
the Services to the CBOT.
"Quote Vendors" and "QVs" mean those vendors who receive and disseminate,
or wish to receive and disseminate, Market Data via an Interface with the
Equipment.
"Relationship Manager" means that individual responsible on behalf of LIFFE
or the CBOT, as applicable, for the day to day management of the
relationship between LIFFE and the CBOT.
"Replacements" means, collectively, replacements, improvements,
enhancements, additions and modifications to and of any Equipment or any
portion thereof.
"Replacement Value" means all Losses associated with replacing and/or
repairing Equipment, including the installation and commissioning of
replacement technology and removal and disposal of existing equipment.
"Restricted Documentation" means Documentation that is designated by LIFFE
as "LIFFE Restricted" or otherwise specified by LIFFE to be restricted,
including the Documentation set forth in Part 2(b) of Schedule C.
Notwithstanding the foregoing, all documentation provided by LIFFE to the
CBOT prior to the Effective Date which is labeled "LIFFE Confidential" is
Restricted Documentation for purposes of this Agreement unless LIFFE, upon
the CBOT's inquiry, notifies the CBOT in writing that specific
Documentation is not "Restricted Documentation."
"Schematics" means, collectively, (i) the schematics stated in the
following documents set forth in Schedule N hereto: [**]; and (ii) any
amendments thereto agreed upon by the Parties. The Schematics are, by their
nature, high level and are not intended to provide detailed architectural
specifications.
"Services" shall have the meaning set forth in Section 2.1.
"Simulations" shall have the meaning set forth in Section 2.1(k).
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
"Software" means, collectively, (i) the Components, and (ii) any
improvements, enhancements, additions, and modifications to or of the
foregoing as LIFFE may provide to the CBOT pursuant to the terms of any
Managed Services Agreement.
"Software Installation Locations" shall have the meaning set forth in
Section 2.1(e).
"Software License Agreement" shall have the meaning set forth in Recital B
above.
"Specifications" means, collectively, (i) the specifications stated in the
following documents set forth in Schedule A: [**]; and (iii) any
amendments to the foregoing agreed upon by the Parties.
"Summary Project Plan" means that Summary Project Plan agreed upon by the
Parties and attached as Schedule B hereto.
"System Software" shall have the meaning set forth in Section 3.3.4(c).
"System Testing" shall have the meaning set forth in Section 2.1(d).
"Taxes" shall have the meaning set forth in Section 8.2.
"Technical Conformance Testing" shall have the meaning set forth in Section
2.1(j).
"Termination Notice Period" shall have the meaning set forth in Section
10.2.1.
"Test Cases" means those scripted tests used to verify Test Data.
"Test Data" means a set of input values or conditions and results in either
value form or condition form, to verify that a Component's performance
materially conforms to the Specifications.
"Test Material" means, collectively, Acceptance Criteria, Test Cases, Test
Data and Test Plans.
"Test Plans" means one or more documents setting out the procedures
(including the detailed timing) for each Acceptance Test, based on the
Acceptance Criteria.
"Third Party Materials" means any equipment, hardware, software, and/or
other products obtained from any third party (excluding any such products
obtained from any subcontractor or agent of LIFFE in connection with the
performance by such subcontractor or agent of Services hereunder).
"Trading Application" means any front-end trading application or other
software which interfaces with, and has been conformed with, the API.
"Trading Host" means the LIFFE CONNECT matching engine as may be developed
for the CBOT pursuant to this Agreement and used on such Equipment as LIFFE
may specify from time to time.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
7
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
"Upgrades" means, collectively, improvements, enhancements, additions and
modifications to and of the Licensed Technology or any portion thereof
which LIFFE specifies for use and/or access as Licensed Technology.
"U.S." means the United States of America.
"Xxxxxx/eSpeed Patent" means U.S. Letter Patent No. 4,903,201 (the '201
patent).
"Xxxxxx License" shall have the meaning set forth in Section 14.2.
2. Services
2.1 Overview. During the term of this Agreement, LIFFE shall use reasonable
efforts to provide to the CBOT the following services (collectively, the
"Services"):
(a) procurement of the Equipment and delivery of such Equipment to,
and installation of such Equipment at, the equipment installation
sites identified in Schedule D hereto or such other locations as
may be agreed upon by the Parties ("Equipment Installation
Sites"), including handling and management of Equipment;
(b) procurement from third parties of software specified on Schedule
E hereto, and installation of such software at the locations set
forth in Schedule E and such other locations as LIFFE may deem
necessary;
(c) development of Components and user documentation related thereto,
in accordance with the Specifications and the Summary Project
Plan;
(d) testing of the Components, prior to releasing such Components to
the CBOT for acceptance testing, in order to ascertain whether
the Components materially conform to the Specifications ("System
Testing");
(e) physical delivery of the Components to, and installation of such
Components at, the locations identified in Schedule F hereto or
such other locations as may be agreed upon by the Parties
("Software Installation Locations");
(f) physical delivery of the Documentation to the CBOT;
(g) training of CBOT staff, in accordance with Schedule G hereto;
(h) assisting the CBOT with acceptance testing of the Components, in
accordance with Section 4;
(i) assisting the CBOT, as agreed by the Parties, with testing
whether the individual and collective components of the CBOT
Technology conform with the Interfaces and whether the Interfaces
perform in accordance with the Specifications ("Integration
Testing");
(j) assisting the CBOT, as agreed by the Parties, in its efforts to
ensure that trading applications of ISVs and Member developers
wishing to participate in the CBOT Electronic Exchange conform
with such standards as LIFFE may issue from time to time
("Technical Conformance Testing");
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
(k) assisting the CBOT, as agreed by the Parties, in testing
processes designed to authorize and prepare Market Participants
to participate in the CBOT Electronic Exchange ("Market
Participant Testing"), including simulations of the CBOT
Electronic Exchange ("Simulations"); and
(l) management of LIFFE's delivery of the Services.
2.2 Schematics. LIFFE shall use reasonable efforts to provide the Services
in a manner consistent with the Schematics, where applicable.
2.3 Summary Project Plan.
2.3.1 Milestones. LIFFE shall use reasonable efforts to meet those
milestones agreed upon by the Parties and set out in the Summary
Project Plan (the "Milestones") in respect of the Services and
shall have at its disposal the resources necessary to meet the
Services Milestones. The CBOT acknowledges that (a) such
Milestones are goals, not guarantees; and (b) LIFFE's ability to
meet such Milestones (i) is contingent upon the CBOT's compliance
with its obligations under this Agreement, including fulfillment
of its dependencies set forth in Schedules B and M and the
preparation and delivery to LIFFE of the Test Material in
accordance with Section 4; and (ii) may be affected by (x) the
CBOT's initiation of a Change Request resulting in modification
of the nature or scope of the Services and (y) any reinstatement
of the Services following suspension of the Services pursuant to
Section 8.5.
2.3.2 Key Milestone Likely Not To Be Met. In the event that LIFFE
reasonably anticipates that any of the key Milestones pertaining
to the Services and identified on the Summary Project Plan (each
a "Key Milestone") may not be met, then LIFFE shall notify the
CBOT promptly of the potential delay, and shall inform the CBOT
of LIFFE's basis for such determination. Thereafter, (a) the
Parties shall cooperate to identify resources, and to devise and
carry out measures, to facilitate the prompt completion of the
Services associated with such Key Milestone, and (b) LIFFE's
Project Manager shall report on a daily basis to the CBOT's
Project Manager LIFFE's progress in endeavoring to meet the Key
Milestone.
2.3.3 Missed Key Milestone. In the event that any Key Milestone is not
met, LIFFE shall promptly notify the CBOT of the missed Key
Milestone. Thereafter, (a) the Director of Global Programme
Delivery, LIFFE Market Solutions shall report on a daily basis to
a representative of the CBOT at an equivalent level LIFFE's
progress towards the completion of the Services associated with
such Key Milestone; and (b) the Parties shall (i) continue to
carry out any measures devised in accordance with Section 2.3.2
or, if no such measures have been devised, cooperate to identify
resources, and to devise and carry out measures, to facilitate
the prompt completion of the Services associated with the missed
Key Milestone; (ii) cooperate to identify resources, and to
devise and carry out measures, to mitigate the impact upon future
Milestones of missing such Key Milestone; and (iii) agree, in
advance of carrying out any further endeavors to complete the
Services associated with the Key Milestone, [**]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
[**] associated with the missed Key Milestone during the period
between the Key Milestone and the date of completion of the
Services associated with such Key Milestone (the "Catch Up
Period"); provided, however, that (x) [**] in the event the delay
in meeting the Key Milestone is a result of the CBOT's failure to
fulfill any of its obligations under this Agreement; and (y) if
the services associated with the missed Key Milestone are solely
the responsibility of LIFFE, [**] during the Catch Up Period.
Once the Services associated with the Key Milestone have been
completed, LIFFE shall notify the CBOT of the date of completion
of such Services.
2.3.4 [**]. In the event that any Key Milestone is not met, [**];
provided, however, that no [**] pursuant to this Section 2.3.4
shall be made in the event the delay in meeting the Key Milestone
is a result of the CBOT's failure to fulfill any of its
obligations under this Agreement. Notwithstanding the foregoing,
the Parties agree that, upon the Go Live Date, all Services
associated with Key Milestones will be deemed to have been
completed.
2.3.5 Disputes. In the event of any Dispute with respect to the
foregoing Sections 2.3.1 to 2.3.4, the Parties shall address such
Dispute in accordance with Section 17.
2.4 Change Control Procedures. Any requests of either Party for material
changes to the nature or scope of the Services to be performed after the
Effective Date must be (a) made according to the change control procedures set
forth in Schedule H hereto ("Change Control Procedures"); and (b) agreed to in
writing by both Parties, in the form of the "Change Request Form" set forth in
Appendix 2 to Schedule H (each such duly completed and executed Change Request
Form, a "Change Request"). Each Change Request shall be incorporated in and
subject to the terms and conditions of this Agreement.
2.5 Site. Except as otherwise provided in this Agreement, the Services will
be performed at LIFFE's offices or at such other locations as LIFFE deems
appropriate. LIFFE agrees that when any LIFFE Project Personnel are present on
the CBOT's Premises, such LIFFE Project Personnel shall use good faith efforts
to comply with the CBOT's Acceptable Use and Harassment Policies as set forth in
Schedule I.
2.6 Subcontractors. LIFFE may appoint subcontractors and agents to carry
out the whole or any part of its obligations hereunder; provided, however, that
(a) LIFFE shall provide the CBOT the name of any individual LIFFE has appointed
as its subcontractor or agent hereunder whose primary residence is located in
the United States and whose activities are to be undertaken at the CBOT's
Premises, prior to such individual undertaking such activities, and the CBOT
shall have the right, in its reasonable discretion, to deny access to the CBOT's
Premises to such individual; provided, further, however, that (i) LIFFE shall
not be responsible for any delays or other consequences resulting from any such
denial and (ii) the CBOT shall indemnify and hold LIFFE, its Affiliates, and the
officers, directors, employees, agents and representatives of LIFFE and its
Affiliates harmless from and against any and all Losses
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
reasonably incurred or suffered as a result of such denial; and (b) LIFFE shall
notify the CBOT of the identity of any subcontractor entity whose primary
residence is located in the United States and whose activities are to be
undertaken at locations other than the CBOT's Premises. For the avoidance of
doubt, LIFFE shall not have an obligation to notify the CBOT of (x) any
individual or subcontractor entity whose primary residence is located outside
the United States or (y) any individual whose activities are to be undertaken at
any site other than the CBOT's Premises.
2.7 Quality of Services. LIFFE shall use good faith efforts to ensure that
the LIFFE Project Personnel engaged in carrying out the Services shall have the
skills, experience, qualifications and knowledge necessary to perform the
Services assigned to such LIFFE Project Personnel. LIFFE shall use (and shall
require its subcontractors to use) reasonable skill and care in carrying out the
Services and shall use good faith efforts to comply with all applicable laws and
regulations in the performance of its obligations under this Agreement.
2.8 Progress Reports. Subject to Sections 2.3.2 and 2.3.3, LIFFE shall
provide the CBOT written reports regarding the status of LIFFE's performance of
the Services, at intervals to be agreed upon by the Parties. 2.9 Delays. LIFFE
shall not be responsible for any delays or other consequences arising from any
failure by the CBOT to perform any of its obligations under this Agreement.
3. Equipment
3.1 Replacements. LIFFE may, at its option, replace Equipment or components
thereof with other equipment or components which are substantially similar to
the Equipment being replaced or improvements, enhancements, additions or
modifications to such Equipment. Such Replacements will thereafter be deemed
"Equipment" for purposes of this Agreement.
3.2 Disablement and Repossession.
3.2.1 At LIFFE's Option. LIFFE may, at its option, disable and/or
repossess Equipment; provided that LIFFE will not disable and/or
repossess Equipment located at a CBOT Controlled Site without
either (a) reasonable cause or (b) providing prior notice to the
CBOT. Notwithstanding the foregoing, LIFFE shall, to the extent
reasonably practicable, provide the CBOT prior notice of any
disablement or repossession of Equipment at a CBOT Controlled
Site.
3.2.2 At the CBOT's Request. LIFFE shall disable and/or repossess
Equipment from any CBOT Controlled Sites as reasonably requested
by the CBOT, at the CBOT's cost.
3.3 Responsibilities of the CBOT.
3.3.1 Access. The CBOT shall provide (or require a Market Participant
to provide, as applicable) LIFFE such access as LIFFE may
reasonably request to all CBOT Controlled Sites:
(a) for purposes of installing any Replacements;
(b) to enable LIFFE or its designee to carry out its rights and
responsibilities under Section 3.2;
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
(c) to enable LIFFE or its designee to inspect Equipment or any
portion thereof: (i) to determine whether the CBOT is
complying or has complied with its obligations under this
Agreement; and/or (ii) to facilitate LIFFE's efforts to
remedy any defect or error in such Equipment; and
(d) to enable LIFFE or its designee to disable and/or remove
Equipment or any portion thereof: (i) if the CBOT has
failed, or is failing, to comply with its obligations under
this Agreement; and/or to (ii) facilitate LIFFE's efforts
to remedy any defect or error in such Equipment.
3.3.2 Prior to Installation. In connection with each installation of
Equipment at a CBOT Controlled Site, the CBOT shall, at the
CBOT's expense and by such date(s) and at such time(s) as LIFFE
may reasonably request, (a) permit (or require a Market
Participant to permit) LIFFE or its designee to inspect such
CBOT Controlled Site prior to the delivery of any Equipment
thereto; (b) make (or require a Market Participant to make) such
modifications, alterations or additions to such CBOT Controlled
Site as LIFFE may reasonably request; and (c) provide (or
require a Market Participant to provide) LIFFE with any further
assistance and facilities as LIFFE may reasonably request,
including (i) preparing suitable accommodation and environmental
conditions for such Equipment and (ii) making available any
equipment, software, ancillary plant, fittings, electrical power
supply and other facilities sufficient to meet all reasonable
requirements of LIFFE.
3.3.3 Following Installation. With respect to all Equipment located at
a CBOT Controlled Site, the CBOT shall (and shall require each
Market Participant to) maintain at all times the accommodation,
environment and facilities for the Equipment as may be
reasonably specified by LIFFE from time to time.
3.3.4 Restrictions on Use.
(a) All Equipment. With respect to all Equipment, the CBOT
agrees, and shall require each Market Participant to agree:
(i) not to, and not to permit any other Person (including
any Market Participant) to, without the prior written
consent of LIFFE, combine the Equipment with any
equipment, software, or other technology (other than
Licensed Technology or other technology approved by
LIFFE); or
(ii) not to, and not to permit any other Person (including
any Market Participant) to, without the prior written
consent of LIFFE, repossess or disable any Equipment;
provided, however, that the CBOT may repossess or
disable Equipment on CBOT Controlled Sites as may be
necessary in conjunction with the CBOT's monitoring
and control of the CBOT Electronic Exchange;
(iii) not to, and not to permit any other Person (including
any Market Participant) to, create any lien or other
encumbrance on the Equipment or any part or parts
thereof or do any act (x) which
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
might jeopardize or prejudice the rights of LIFFE or
its suppliers in the Equipment or any portion thereof
or (y) which might reasonably be expected to result in
the Equipment being confiscated, seized,
requisitioned, taken in execution, impounded or
otherwise taken from the possession of the CBOT or any
Market Participant, as applicable; and
(iv) to use or interface with the Equipment only in
accordance with applicable manufacturers'
recommendations.
(b) Located at or Accessible from CBOT Controlled Sites. With
respect to all Equipment located at or accessible from any
CBOT Controlled Site, the CBOT agrees, and shall require
each Market Participant to agree:
(i) not to, and not to permit any other Person (including
any Market Participant) to, interfere or tamper with,
alter, amend or modify the Equipment or any part or
parts thereof without the prior written consent of
LIFFE;
(ii) not to, and not to permit any other Person (including
any Market Participant) to, move the Equipment or any
portion thereof from the CBOT's Premises without the
prior written consent of LIFFE; and
(iii) not to, and not to permit any other Person (including
any Market Participant) to, interfere or tamper with
any serial numbers, identity plates, trademarks,
proprietary notices or other designations, including
those of LIFFE or LIFFE's suppliers, on the Equipment
any portion thereof; and
(c) Software. With respect to all software embedded in or
otherwise included within the Equipment ("System Software"),
CBOT agrees not to, and not to permit any other Person
(including any Market Participant) to:
(i) copy, modify, duplicate, decompile, reverse engineer,
disassemble or otherwise reduce to a humanly
perceivable form, make any attempt to discover the
source code of, create derivative works based on,
market, sell, provide or make available to any third
party, otherwise distribute, or translate the System
Software, except as expressly provided herein;
(ii) remove or alter in any manner any trademarks, trade
names, copyright notices or other proprietary or
confidentiality notices or designations, of the CBOT
or other Person, contained or displayed in or on the
System Software; or
(iii) upload any computer virus, Trojan horse, worm, time
bomb, or other similar code or hardware designed to
disrupt the operation of, permit unauthorized access
to, erase, or modify the System
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
Software or Equipment, or otherwise use the System
Software to further any purpose which is illegal.
3.3.5 Insurance. With respect to all Equipment located at any CBOT
Controlled Site, the CBOT agrees either to (a) arrange to insure
the Equipment comprehensively against all insurable risks with a
reputable insurance company, on terms satisfactory to LIFFE
(naming LIFFE as a beneficiary), or (b) accept all liability for
the Equipment; in each case for the full Replacement Value
thereof, from and including the date on which the Equipment or
any portion thereof is delivered to the CBOT Controlled Site,
until such time as the Equipment is either returned to or
repossessed by LIFFE. Where the Equipment has been insured by an
insurance company, the CBOT shall, at the request of LIFFE,
provide to LIFFE either a copy of the relevant portion of such
insurance policy or a written certificate evidencing the
currency of the same.
3.3.6 Market Participants.
3.3.6.1 Interface Sublicense Agreement. Prior to the
installation of any Equipment on premises owned or
controlled by any Person wishing to become a Market
Participant, the CBOT shall require such Person to enter
into an Interface Sublicense Agreement.
3.3.6.2 Enforcement. The CBOT shall:
(a) promptly upon becoming aware of such actions,
provide LIFFE written notice of (i) any violation by
a Market Participant or any other Person of the
restrictions set forth in Section 3.3.4; and (ii)
any other acts or omissions of any Person which the
CBOT believes (x) might jeopardize or prejudice the
rights of LIFFE or its suppliers in the Equipment;
(y) may result in the Equipment being confiscated,
seized, requisitioned, taken in execution, impounded
or otherwise taken from any location; or (z)
threaten the security or operation of the Equipment;
and
(b) promptly upon becoming aware of (i) any claim,
demand, or cause of action brought against the CBOT
by a Market Participant or any other Person, or any
subpoena served upon the CBOT or (ii) any employee,
officer or director thereof, which relates to the
Equipment or any component thereof, provide LIFFE
written notice of such claim, demand, cause of
action or subpoena.
3.3.7 Change Notification. The CBOT shall provide LIFFE's Project
Manager prior written notice (or, if prior written notice is not
feasible, immediate written notification) of (i) any changes to
the physical environment at any CBOT Controlled Site in which
Equipment and/or Software operate (e.g. maintenance or shutdowns
of power supply or temperature control devices), and (ii) any
changes to, relocations of, or maintenance of any CBOT
Technology that interfaces with Software and/or Equipment.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
3.4 Responsibilities of LIFFE. In the event any Equipment is confiscated,
seized, requisitioned, taken in execution, impounded or otherwise taken from the
possession of LIFFE as a result of LIFFE permitting a third party lien or other
encumbrance to be placed on such Equipment (excluding any such lien or other
encumbrance established in connection with the procurement of such Equipment),
LIFFE shall, at LIFFE's expense, replace such Equipment. Such Replacements will
thereafter be deemed "Equipment" for purposes of this Agreement.
4. Acceptance Testing
4.1 System Testing. Prior to LIFFE's release to the CBOT of the Software
for acceptance testing, LIFFE shall test the Components. Prior to the CBOT's
commencement of acceptance testing, the CBOT shall test all software required to
be provided by the CBOT hereunder (the "CBOT Deliverables") to ascertain whether
such software materially conforms to the CBOT's specifications for such CBOT
Deliverables and those specifications for the Interfaces set forth on Schedule
A. Acceptance testing shall not commence until (a) LIFFE has notified the CBOT
in writing that LIFFE has reasonably determined that the Software materially
conforms to the Specifications and (b) the CBOT has notified LIFFE in writing
that the CBOT has reasonably determined that the CBOT Deliverables materially
conforms to the CBOT's specifications for such CBOT Deliverables and those
specifications for the Interfaces comprising the Specifications. Between
delivery of such notice to the other Party and the CBOT's issuance of the
Initial Acceptance Certificate, (i) LIFFE shall endeavor to provide the CBOT
written notice of any modifications of the Software that may have a material
impact on the functionality, performance or operation of the Software, and (ii)
the CBOT shall endeavor to provide LIFFE written notice of any modifications to
the CBOT Deliverables that may have material impact on the functionality,
performance or operation of the CBOT Deliverables.
4.2 Preparation. Acceptance testing will consist of two phases:
Integration Testing and Simulations. By no later than the applicable Milestones,
or such dates as are otherwise agreed upon by the Parties, the CBOT shall, in
consultation with LIFFE, prepare and submit to LIFFE Acceptance Criteria, Test
Cases, Test Data, and Test Plans in respect of each Component, suitable to
demonstrate that such Component can be integrated with the remaining Components
comprising the Software and that the Software materially conforms to the
applicable portions of the Specifications. LIFFE shall review each such
submission and shall notify the CBOT of its objections or concerns with the
submission. The CBOT shall cooperate in good faith to modify the Test Material
to address LIFFE's reasonable objections and create mutually acceptable Test
Material.
4.3 Integration Testing.
4.3.1 Notification. Commencing upon the relevant Milestone set forth in the
Summary Project Plan, or upon any alternative date agreed upon by the Parties,
the CBOT shall, with LIFFE's reasonable assistance, carry out Integration
Testing at LIFFE's offices in London and the CBOT's facilities in Chicago, or
elsewhere as the Parties may agree, as the Parties may deem most appropriate to
facilitate acceptance testing and to meet the relevant Milestones.
4.3.2 Suspected Defects.
4.3.2.1 Material Defects. If a Material Defect is suspected, (a) the
CBOT shall, immediately upon becoming aware of such suspected
Material Defect, provide LIFFE's Project Manager written
notice of such suspected Material Defect, together with all
Evidence of such suspected Material Defect reasonably
available to the CBOT, and (b) at LIFFE's request, the
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
Parties shall re-perform the relevant Integration Testing
and present the results thereof to each Party's Project
Manager. If the Parties agree that Integration Testing
has revealed a Material Defect, the Parties shall
document the nature of the Material Defect identified by
the Integration Testing. As soon as reasonably
practicable thereafter, (i) LIFFE shall use reasonable
efforts to remedy the Material Defect and shall notify
the CBOT's Project Manager once LIFFE reasonably believes
the Material Defect has been remedied; and (ii) the
Parties shall repeat the Integration Testing, in whole or
in part as necessary, to confirm that such Material
Defect has been remedied. If such initial efforts to
remedy the Material Defect prove unsuccessful, this cycle
shall be repeated until (x) Integration Testing results
reveal no Material Defects or (y) the CBOT otherwise
agrees to issue an Initial Acceptance Certificate, and
the CBOT shall not incur any Charges for LIFFE's Services
in respect of such repeated cycle(s) in the event that
the need to repeat such cycle is due to LIFFE's failure
to remedy the Material Defect.
4.3.2.2 CBOT Defects. If Integration Testing reveals a defect in
a CBOT Deliverable (a "CBOT Defect"), the Parties shall
document the nature of the CBOT Defect identified by the
Integration Testing and provide to the CBOT's Project
Manager any evidence of the CBOT Defect discovered during
Integration Testing. As soon as reasonably practicable
thereafter, unless otherwise agreed by the Parties, (i)
the CBOT shall use reasonable efforts to remedy the CBOT
Defect and shall notify LIFFE's Project Manager once the
CBOT reasonably believes the CBOT Defect has been
remedied; and (ii) the Parties shall repeat the
Integration Testing, in whole or in part as necessary, to
confirm that such CBOT Defect has been remedied. If such
efforts to remedy the CBOT Defect prove unsuccessful,
this cycle shall be repeated until Integration Testing
results reveal no CBOT Defects.
4.3.3 Initial Acceptance Certificate. Once all of the Software
has completed Integration Testing successfully, the CBOT
shall promptly sign and deliver to LIFFE's Project
Manager an Initial Acceptance Certificate, which shall
evidence the CBOT's Acceptance of the Software. Following
the delivery of the Initial Acceptance Certificate and
subject to the terms thereof, no modifications, other
than such configuration changes as are agreed upon by the
Parties and may be necessary for purposes of carrying out
the Simulations and/or for making the Software and the
CBOT Deliverables available for trading in a real time
live trading environment, shall be made to the Software
or the CBOT Deliverables prior to the Go Live Date,
without the written consent of the Parties.
4.4 Simulations.
4.4.1 Notification. Following issuance of the Initial Acceptance
Certificate and in accordance with the relevant Milestone, the
CBOT shall, with LIFFE's reasonable assistance, carry out
Simulations.
4.4.2 Suspected Defects.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
(a) Material Defects. If a Material Defect is suspected, (a) the
CBOT shall, immediately upon becoming aware of such
suspected Material Defect, provide LIFFE's Project Manager
written notice of such suspected Material Defect, together
with all Evidence of such suspected Material Defect
reasonably available to the CBOT, and (b) at LIFFE's
request, the Parties shall re-perform the relevant
Simulation and present the results thereof to each Party's
Project Manager. If the Parties agree that a Simulation has
revealed a Material Defect, the Parties shall document the
nature of the Material Defect identified by the Simulation.
As soon as reasonably practicable thereafter, (i) LIFFE
shall use reasonable efforts to remedy the Material Defect
and shall notify the CBOT's Project Manager once LIFFE
reasonably believes the Material Defect has been remedied;
and (ii) the Parties shall repeat the Simulation, in whole
or in part as necessary, to confirm that such Material
Defect has been remedied. If such initial efforts to remedy
the Material Defect prove unsuccessful, this cycle shall be
repeated until (x) Simulation results reveal no Material
Defects or (y) the CBOT otherwise agrees to issue a Final
Acceptance Certificate, and the CBOT shall not incur any
Charges for LIFFE's Services in respect of such repeated
cycle(s) in the event that the need to repeat such cycle is
due to LIFFE's failure to remedy the Material Defect.
(b) CBOT Defects. If a Simulation reveals a CBOT Defect, the
Parties shall document the nature of the CBOT Defect
identified by the Simulation and provide to CBOT's Project
Manager any Evidence of the CBOT Defect discovered during
Simulation. As soon as reasonably practicable thereafter,
(i) the CBOT shall use reasonable efforts to remedy the CBOT
Defect and shall notify LIFFE's Project Manager once the
CBOT reasonably believes the CBOT Defect has been remedied;
and (ii) the Parties shall repeat the Simulation, in whole
or in part as necessary, to confirm that such CBOT Defect
has been remedied. If such efforts to remedy the CBOT Defect
prove unsuccessful, this cycle shall be repeated until
Simulation results reveal no CBOT Defects.
4.4.3 Final Acceptance Certificate. Once the Software has completed
Simulations successfully, the CBOT shall promptly sign and
deliver to LIFFE's Project Manager a Final Acceptance
Certificate. Following the delivery of the Final Acceptance
Certificate and subject to the terms thereof, no modifications,
other than such configuration changes as are agreed upon by the
Parties and may be necessary for purposes of making the Software
and the CBOT Deliverables available for trading in a real time
live trading environment, shall be made to the Software or the
CBOT Deliverables prior to the Go Live Date, without the written
consent of the Parties.
4.5 Go Live Date. Notwithstanding any provision to the contrary herein, the
Software will not be made available for use in a real time live trading
environment until and unless the CBOT has delivered to LIFFE's Project Manager
an executed Final Acceptance Certificate in accordance with Section 4.4.3.
4.6 Disputes. Any Dispute relating to acceptance testing shall be addressed
in accordance with the dispute resolution procedures set forth in Section 17.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
17
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
5. General Obligations of the CBOT
5.1 Dependencies. In addition to all other obligations of the CBOT set
forth in this Agreement, the CBOT shall comply with those dependencies set forth
in Schedule M hereto. 5.2 Security. In addition to all other duties of the CBOT
specified hereunder in respect of Licensed Technology and Equipment and the use
or access thereof by the CBOT, the CBOT (a) shall use reasonable efforts to
comply with LIFFE's security policy, a copy of which is attached as Schedule J
hereto; (b) shall establish and maintain supervisory and security procedures
satisfactory to LIFFE for the purpose of protecting all Licensed Technology and
Equipment located at CBOT's Premises and LIFFE's rights, title and interest in
and to the Licensed Technology and Equipment; and (c) shall require each Market
Participant to establish and maintain supervisory and security procedures
appropriate to protect all Licensed Technology and Equipment located at premises
owned or controlled by such Market Participant and LIFFE's rights, title and
interest in and to the Licensed Technology and Equipment. 5.3 Protection of
Licensed Technology and Equipment. The CBOT shall use reasonable efforts to
ensure that no personnel of the CBOT, any Affiliates or subcontractors of the
CBOT, any Market Participants, or any agents of the foregoing (other than LIFFE)
shall have access to the Equipment or the Licensed Technology (excluding the
Interfaces and Non-Restricted Documentation) unless such personnel has received
appropriate training.
5.4 CBOT's Premises. In addition to complying with the requirements set
forth in Section 3.3, the CBOT shall provide LIFFE with such office
accommodation, facilities (including telephones, fax machines, computer
consumables, printers and Internet access), and access to the CBOT's Premises as
LIFFE reasonably deems necessary to facilitate LIFFE's performance of the
Services. 5.5 Materials and Assistance. In addition to providing those resources
identified in Schedule M and in Sections 3.3 and 5.4, in order to facilitate the
Parties' performance of their obligations hereunder, the CBOT shall (a) promptly
provide to LIFFE such relevant information and documentation as LIFFE may
reasonably request, including information and documentation relating to network
infrastructure, hardware, software, equipment, personnel, documentation, space
and office space; and (b) ensure that competent personnel are available during
normal working hours to provide to LIFFE such information or other support in
relation to LIFFE's performance of the Services as LIFFE may reasonably request;
and (c) use good faith efforts to ensure that such personnel possesses the
skills, experience, qualifications, and knowledge necessary to carry out any
tasks to which they may be assigned. 5.6 Upgrades and Replacements. Subject to
any applicable obligations of LIFFE pursuant to any Managed Services Agreement
entered into by the Parties, nothing herein shall require LIFFE to (a) create
any Upgrades or provide any Replacements; (b) deliver or license to the CBOT for
use and/or access as "Licensed Technology" any modifications, enhancements,
improvements or additions to the Licensed Technology as LIFFE may choose to
create; or (c) provide to the CBOT for use and/or access as "Equipment"
hereunder any replacements, modifications, enhancements, improvements or
additions to the Equipment.
6. General Obligations of Both Parties
6.1 Non-Solicitation. Each Party agrees that, during a period from (a) the
Effective Date to (b) the earlier of twelve (12) months after completion of the
Services and the effective date of termination of this Agreement, it shall not
employ or engage on any other basis, and offer such employment or engagement to,
any of the other Party's employees, contractors, and consultants who have been
associated with the performance of such other Party's obligations hereunder,
without the other Party's prior
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
agreement in writing. If a Party employs or engages any employee, contractor or
consultant of the other Party in breach of the foregoing obligations, it will
pay to the other Party damages in an amount equal to the net annual salary of
such employee, contractor or consultant for the twelve (12) months prior to the
date such individual, contractor or consultant is first employed by the Party
breaching such obligation.
6.2 Export Compliance. The CBOT and LIFFE each shall comply with all
applicable export laws and regulations of the United States and foreign
authorities, including regulatory authorities. For purposes of this obligation,
export laws and regulations include, but are not limited to, all applicable end
use controls and all applicable restrictions on the export, reexport and
transfer of encryption items.
7. Project Management
7.1 Appointments. Each Party shall appoint and inform the other Party of
the identity of (a) a Project Manager and (b) a Relationship Manager, to serve
as the primary points of contact between LIFFE and the CBOT with respect to the
Services. Additionally, the Parties shall, in accordance with such terms as the
Parties agree upon, establish a "Program Board" to address issues arising from
the Parties' performance of their obligations under this Agreement.
7.2 Substitutions. Each Party shall promptly notify the other in writing of
any substitutions for or replacements of such individuals appointed in
accordance with Section 7.1, as applicable, and shall take all reasonable steps
to minimize any potential adverse effects of such changes.
8. Charges
8.1 Payment. In consideration for LIFFE's performance of the Services
hereunder, the CBOT shall, via wire transfer of immediately available funds to
such bank account as LIFFE may specify, (a) pay to LIFFE a fee for procurement
of the Equipment, which fee shall be comprised of (i) all actual costs charged
to LIFFE in connection with the procurement of such Equipment (estimates of such
costs are set forth on Schedule E); provided, however, that if LIFFE reasonably
anticipates that the costs charged to LIFFE in connection with the procurement
of any item of Equipment will be higher than the estimated costs for such item
set forth in Schedule E, then, prior to purchasing such item, LIFFE must obtain
the CBOT's written approval of such purchase, which approval shall not be
unreasonably withheld and (ii) an additional [**] of such costs for the purchase
administration, delivery, handling, storage and other activities related to the
procurement of such Equipment for the CBOT (collectively, "Equipment Service
Charges"); (b) pay to LIFFE fees relating to installation of Equipment at the
premises of Market Participants, as further detailed on Schedule K hereto
("Connection Service Charges"); (c) pay to LIFFE fees for all other Services
provided by LIFFE to the CBOT under this Agreement ("Development Service
Charges"), which fees shall be calculated on a time and materials basis in
accordance with the charge rates set forth in Schedule K (the "Charge Rates")
(which Charge Rates are exclusive of expenses); and (d) reimburse LIFFE for any
out of pocket expenses incurred by LIFFE hereunder, including all reasonable
travel, hotel, subsistence and other out of pocket expenses charged in
accordance with LIFFE's travel and expense policy attached as Schedule L hereto
(collectively, "Out of Pocket Expenses"; and such Equipment Service Charges,
Connection Service Charges, Development Service Charges and Out of Pocket
Expenses, collectively, the "Charges"). All payments hereunder shall be made in
pounds sterling; provided that the CBOT may pay in U.S. dollars any Charges
based on such costs incurred by LIFFE hereunder, which costs were denominated in
U.S. dollars.
8.2 Taxes. The Charges shall be exclusive of all international, national or
state taxes (including withholding taxes), levies, duties, or similar charges,
however designated, that may be assessed by any jurisdiction under current law
or as a result of any change in the law following the date thereof
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
(collectively, "Taxes"), and the CBOT shall pay or reimburse LIFFE for all such
Taxes that may be levied or imposed in relation to this Agreement or any of the
rights and licenses granted hereunder, excluding (a) any VAT that is recovered
by LIFFE and (b) taxes based on the net income of LIFFE. LIFFE will use good
faith efforts to recover VAT applicable to any Charges. Prior to receiving from
the CBOT any payment which may be subject to United States withholding taxes,
LIFFE shall deliver to the CBOT two original copies of (i) Internal Revenue
Service ("IRS") Form "W-8BEN" (or any successor forms), accurately completed and
duly executed by LIFFE certifying, in Line 9a thereof (or the corresponding line
of any successor forms), that the applicable treaty is the United States-United
Kingdom Income Tax Convention, and further certifying the matters set forth in
Line 9b and 9c of Form "W-8BEN" (or the corresponding lines of any successor
forms) or (ii) IRS Form "W-8ECI" (or any successor form); provided that, unless
required by U.S. law, LIFFE shall not be required to deliver to the CBOT any
such Forms if LIFFE assigns, pursuant to Section 22, this Agreement and/or its
rights and obligations under this Agreement to an Affiliate of LIFFE which is a
United States corporation. LIFFE hereby agrees, from time to time after the
initial delivery by LIFFE of such forms whenever a lapse in time or change of
circumstances renders such forms obsolete or inaccurate in any material respect,
to deliver to the CBOT two new original copies of IRS Form "W-8BEN" or IRS Form
"W-8ECI" (or any successor forms), accurately completed and duly executed by
LIFFE. Notwithstanding this Section 8.2, the relevant Charges shall be paid net
of any U.S. federal income withholding tax caused by the failure of LIFFE to
provide the CBOT with such forms, unless a change in applicable law of the
United States, enacted or promulgated after the date hereof, makes it impossible
for LIFFE to continue to make the certifications described above.
8.3 Invoices. LIFFE shall invoice the CBOT monthly in arrears for the
Charges and any additional amounts due hereunder, in pounds sterling; provided,
however, that LIFFE will invoice in U.S. dollars any Charges based on costs
incurred by LIFFE hereunder, which costs were denominated in U.S. dollars. For
the avoidance of doubt, any amounts paid by LIFFE in pounds sterling will be
invoiced to the CBOT in pounds sterling. Each invoice for Development Service
Charges will set forth the name of each of the LIFFE Project Personnel who
performed such Services, the categories of work performed by such individual,
the grade of each such individual, and the Charge Rate for such individual.
Subject to Section 8.4, payment of each invoice shall be made by the CBOT within
thirty (30) days of the date of receipt of such invoice by the CBOT (the
"Payment Date"), unless the CBOT makes a good faith objection to the terms of
the invoice, in which case (a) the CBOT shall pay the undisputed amount of the
invoice, and (b) the Parties shall promptly undertake to resolve the disputed
portion of the invoice.
8.4 Financing. The Parties may agree upon a financing arrangement (the
"Financing Agreement"), pursuant to which the CBOT may, upon written notice to
LIFFE, elect to finance certain of the Charges set forth on any invoice provided
under this Agreement. For the avoidance of doubt, any Charges that the CBOT does
not elect to finance pursuant to any Financing Agreement shall be paid by the
CBOT in accordance with Section 8.3.
8.5 Suspension. If the CBOT fails to pay any undisputed Charges due under
this Agreement by the Payment Date, then, without prejudice to any other remedy
available to LIFFE, LIFFE may, upon fourteen (14) days prior written notice to
the CBOT, suspend the Services, provided that the CBOT has not made payment
within such period of time. In the event of reinstatement of the Services, the
CBOT shall be required to install any such Upgrades and/or Replacements to the
version(s) of the Licensed Technology or Equipment last utilized by the CBOT, as
LIFFE may specify.
8.6 Late Payment. If the CBOT fails to pay any undisputed Charges due under
this Agreement by the Payment Date, then interest shall be charged thereon from
the date of issuance of the applicable invoice until the date payment is made,
at the rate of the lesser of one and one half percent (1.5%) per month, or the
maximum amount allowed under applicable law.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
9. Term
This Agreement shall commence on the Effective Date and shall continue
until the earlier of the completion of the Services and March 1, 2004, unless
(a) otherwise agreed by the Parties or (b) terminated in accordance with Section
10 or as otherwise provided in this Agreement.
10. Termination
10.1 By the CBOT. The CBOT may terminate this Agreement immediately upon
notice to LIFFE in the event that the Parties have not entered into a Managed
Services Agreement by [**].
10.2 By LIFFE.
10.2.1 [**]. LIFFE may terminate this Agreement, upon twelve
(12) months prior written notice to the CBOT ("Termination
Notice Period"), if [**], or any Affiliate of [**], directly
or indirectly acquires control of the CBOT.
10.2.2 Managed Services Agreement. LIFFE may terminate this Agreement
immediately upon notice to the CBOT in the event that the
Parties have not entered into a Managed Services Agreement by
[**].
10.3 By Either Party.
10.3.1 Material Breach. Subject to Section 11.3, at any time during
the term of this Agreement, either Party may terminate this
Agreement immediately upon written notice to the other Party if
the other Party commits a breach of any of its material
obligations under this Agreement and fails to remedy such
material breach within thirty (30) days of receipt of written
notice thereof.
10.3.2 Insolvency. At any time during the term of this Agreement,
either Party may terminate this Agreement upon thirty (30) days
prior written notice if: (a) the other Party (i) becomes
insolvent, (ii) voluntarily commences any proceeding or files
any petition under the bankruptcy laws of the United States or
England and Wales, (iii) becomes subject to any involuntary
bankruptcy or insolvency proceedings under the laws of the
United States or England and Wales, which proceedings are not
dismissed within thirty (30) days, (iv) makes an assignment for
the benefit of its creditors, or (v) appoints a receiver,
trustee, custodian or liquidator for a substantial portion of,
its property, assets or business; or (b) the other Party passes
a resolution for its winding up or dissolution, or a court of
competent jurisdiction makes an order for such other Party's
winding up or dissolution.
10.4 Automatic Termination. This Agreement will terminate automatically
upon termination of the Software License Agreement.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
11. Consequences of Termination
11.1 Equipment.
11.1.1 In CBOT's Possession. In addition to complying with those
requirements set forth in Section 12.1 of the Software License
Agreement, following termination of this Agreement, the CBOT
shall (a) immediately cease use of the Equipment; and (b) at
LIFFE's request and at the CBOT's expense, (i) within fourteen
(14) days of the effective date of termination of this
Agreement, permanently erase and certify the erasure of the
Software (and all copies thereof) from the Equipment and all
backup Media; (ii) immediately return to LIFFE, or destroy
and certify as destroyed, any Licensed Technology in the
CBOT's possession and/or control (including all Documentation);
(iii) as LIFFE may elect, promptly return to LIFFE or permit
LIFFE to repossess any Equipment; and (iv) promptly return
to LIFFE or, with LIFFE's prior written consent destroy and
certify as destroyed, any and all other LIFFE Property in
the CBOT's possession and/or control.
11.1.2 In Market Participants' Possession. Upon or prior to the
effective date of termination of this Agreement, the CBOT
shall, at the CBOT's expense, (a) require each Market
Participant to (i) immediately cease use of the Equipment
and all Licensed Technology; (ii) promptly return to LIFFE,
or certify as destroyed, each item of Licensed Technology
within such Market Participant's possession or control;
(iii) as LIFFE may elect, either promptly return to LIFFE or
permit LIFFE to repossess all Equipment in such Market
Participant's possession and/or control; and (iv) promptly
return to LIFFE or, with LIFFE's written consent destroy and
certify as destroyed, any other LIFFE Property within such
Market Participant's possession and/or control; and (b)
notwithstanding the foregoing Section 11.1.2(a), return to
LIFFE any LIFFE Property that has been provided to the CBOT
by any Market Participant, promptly upon the CBOT's receipt
thereof.
11.2 Third Party Obligations. In the event of termination of this
Agreement, LIFFE will use commercially reasonable efforts to terminate any
contracts with third parties relating to LIFFE's obligations hereunder (or
relevant portions thereof). Notwithstanding the foregoing, the CBOT shall be
obligated to reimburse LIFFE for any and all costs and expenses relevant to this
Agreement for which LIFFE is contractually obligated to such third parties as of
the termination hereof; provided that (a) LIFFE has used commercially reasonable
efforts to mitigate such costs and expenses and (b) LIFFE has, within ninety
(90) days of the execution of the effective date of termination of this
Agreement, notified the CBOT of the existence and term of the contract, the
identity of the counterparty to the contract, and the estimated amount of the
CBOT's payment obligation in respect of such contract.
11.3 Survival. The termination of this Agreement for any reason will not
affect the accrued rights of the Parties or the right of either Party to xxx for
damages arising from a breach of this Agreement. Notwithstanding termination of
this Agreement, the CBOT shall remain liable to pay LIFFE all sums accrued or
due on or prior to the effective date of termination. Sections 1, 3.2, 3.3.1(b),
3.3.1(c)(i), 3.3.1(d)(i), 3.3.3, 3.3.4, 3.3.5, 3.3.6.2, 6, 8, 11, 12, 13, 14,
15, 16, 17, 18, 19, 21, 24, 25, 26, 27, 28, 29 and 31 shall survive beyond the
effective date of termination of this Agreement and shall remain in full force
and effect.
12. Proprietary Rights
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
12.1 LIFFE Property. As between the CBOT and LIFFE, all rights, title and
interest in and to the Licensed Technology and all portions thereof (excluding
the third party software specified in Schedule G of the Software License
Agreement), including but not limited to, all Software, Upgrades, and
Documentation; all Confidential Information of LIFFE; all Equipment; all
Replacements; all other materials whatsoever relating to the Licensed Technology
and/or the Equipment and provided by LIFFE to the CBOT and/or any Market
Participants, including any gateways, hubs, routers, cables, cabinets and
servers; and any other materials provided by or on behalf of LIFFE to the CBOT
and/or any Market Participants under this Agreement; including all copyrights,
trademarks, patents, trade secrets and other intellectual property inherent in
the foregoing or appurtenant thereto (collectively, "LIFFE Property") shall be
and remain vested in LIFFE (or LIFFE's Affiliates, suppliers or licensors, as
applicable). To the extent, if any, that ownership of the LIFFE Property does
not automatically vest in LIFFE by virtue of this Agreement or otherwise, the
CBOT hereby transfers and assigns to LIFFE, as of the date of creation, all
rights, title and interest which the CBOT may have in and to such LIFFE
Property. The CBOT undertakes, at the CBOT's expense, to do or cease to do all
such acts as LIFFE may reasonably direct, and to execute, or cause its
employees, agents and/or subcontractors to execute, all such documents as LIFFE
deems reasonably necessary or helpful to assure further the rights, title and
interest of LIFFE or its nominee in and to such LIFFE Property.
12.2 CBOT's Property. Notwithstanding the foregoing Section 12.1, as
between the CBOT and LIFFE, all rights, title and interest in and to (a) the
CBOT Technology (if any); (b) Market Data; (c) all Confidential Information of
the CBOT; and (d) all copyrights, trademarks, patents, trade secrets and other
intellectual property inherent in the foregoing or appurtenant thereto
(collectively, the "CBOT's Property") shall be and remain vested in the CBOT. To
the extent, if any, that ownership of the CBOT Property does not automatically
vest in the CBOT by virtue of this Agreement or otherwise, LIFFE hereby
transfers and assigns to the CBOT, as of the date of creation, all rights, title
and interest which LIFFE may have in and to such CBOT Property. LIFFE
undertakes, at LIFFE's expense, to do or cease to do all such acts as the CBOT
may reasonably direct, and to execute, or cause its employees, agents and/or
subcontractors to execute, all such documents as the CBOT deems reasonably
necessary or helpful to assure further the rights, title and interest of the
CBOT or its nominee in and to such CBOT Property.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
23
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
13. Confidentiality
---------------
13.1 Confidential Information. Subject to Section 13.2, each Party shall
treat as confidential the terms and conditions of this Agreement (excluding the
existence of this Agreement), all information (a) marked as confidential, "CBOT
Restricted" and/or "LIFFE Restricted" (as applicable) or (b) which the recipient
should reasonably know, by its nature or the manner of its disclosure, to be
confidential (including, but not limited to, the information and materials the
CBOT has obtained rights to use hereunder), which either Party may receive or
have access to during or prior to the performance of this Agreement
("Confidential Information"). Neither Party shall (i) use the Confidential
Information of the other Party for any purpose other than the performance of its
obligations under this Agreement, the Software License Agreement, or the Managed
Services Agreement, or (ii) divulge such Confidential Information (x) without
the other Party's prior written consent, to anyone other than the employees,
subcontractors, consultants or advisors of such Party who are subject to
nondisclosure obligations and to whom such disclosure is reasonably necessary to
facilitate the performance of this Agreement; or (y) unless requested pursuant
to a judicial or governmental request, requirement or order under law (including
disclosure obligations of the Parties under applicable securities laws), in
which case, if not so prohibited by a regulatory or other governmental authority
or an order of a court of competent jurisdiction, the receiving Party will
promptly notify the other Party of such request; provided that, if, in the
opinion of counsel to the receiving Party, such disclosure is required under
securities laws, the receiving Party, in consultation with the other Party,
shall additionally use good faith efforts to secure confidential treatment of
the information so disclosed. "Confidential Information" of LIFFE includes, but
is not limited to, Restricted Documentation and the source code of the Software.
For the avoidance of doubt, with respect to Confidential Information of LIFFE
that has been disclosed to the CBOT or to which the CBOT has access, the CBOT
shall neither provide or permit [**] access to, nor permit any other Person to
provide or permit [**] access to, any Confidential Information of LIFFE or any
derivative work based on such Confidential Information.
13.2 Exclusions. Notwithstanding Section 13.1, Confidential Information
will not include information (a) which is independently developed by the
receiving Party or is lawfully received free of restriction from another source
that, to the receiving Party's knowledge, has the right to furnish such
information; (b) after it has become generally available to the public by acts
not attributable to the receiving Party or its employees, consultants or
advisors; or (c) which, at the time of disclosure to the receiving Party, was
known to the receiving Party free of restriction.
14. Warranties
----------
14.1 LIFFE. LIFFE warrants that (a) it has the requisite corporate power
and authority to execute and perform this Agreement; (b) its execution and
performance of its obligations hereunder will not violate any other agreement or
regulatory obligation to which it is bound; and (c) to LIFFE's knowledge, the
Software contains no Malicious Code. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT, LIFFE MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, CONDITIONS,
UNDERTAKINGS, TERMS OR REPRESENTATIONS, EXPRESSED OR IMPLIED BY STATUTE, COMMON
LAW OR OTHERWISE, IN RELATION TO THE SERVICES OR THE LICENSED TECHNOLOGY OR ANY
PORTION OF THE SAME OR THE USE THEREOF, INCLUDING BUT NOT LIMITED TO ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. LIFFE FURTHER DISCLAIMS ALL WARRANTIES, IMPLIED OR OTHERWISE,
RELATING TO ANY THIRD PARTY MATERIALS.
14.2 The CBOT. The CBOT hereby warrants to LIFFE that (a) it has the
requisite corporate power and authority to execute and perform this Agreement;
(b) its execution and performance of its
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
24
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
obligations hereunder will not violate any other agreement or regulatory
obligation to which it is bound; (c) it is a valid licensee of the Xxxxxx/eSpeed
Patent pursuant to Attachment B to that certain "Settlement Agreement" between
the CBOT, The Chicago Mercantile Exchange, Electronic Trading Systems
Corporation and eSpeed, entered into as of August 26, 2002, in settlement of
eSpeed, Inc. and Electronic Trading Systems Corporation v. The Board of Trade of
the City of Chicago and The Chicago Mercantile Exchange, before the United
States District Court for the Northern District of Texas (Civil Action No.
3:99-CV-1016-M) (the "Xxxxxx License"), a copy of which has been provided to
LIFFE; and (d) the Services, the Equipment and Licensed Technology provided
hereunder, and the use of such Equipment and Licensed Technology by or on behalf
of the CBOT, Sublicensees and Market Participants, are encompassed by such
Xxxxxx License and will not violate the terms of the Xxxxxx License. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CBOT MAKES NO, AND HEREBY DISCLAIMS
ALL, WARRANTIES, CONDITIONS, UNDERTAKINGS, TERMS OR REPRESENTATIONS, EXPRESSED
OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, IN RELATION TO THE LICENSED
TECHNOLOGY AND CBOT PROPERTY OR ANY PORTION OF THE SAME OR THE USE THEREOF,
INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
15. Indemnification
---------------
15.1 By LIFFE. LIFFE shall defend, indemnify and hold the CBOT, and the
officers, directors, employees, agents, and representatives of the CBOT ("CBOT
Indemnitees") harmless from and against all costs, claims, demands, losses,
expenses and liabilities of any nature whatsoever (including reasonable
attorneys fees) ("Losses") incurred or suffered by such CBOT Indemnitees arising
out of, or in connection with, any third party claim, demand, or cause of action
(each, a "Claim") to the extent such Claim is based upon or arises out of (a)
LIFFE's gross negligence or willful misconduct; (b) LIFFE's material breach of
this Agreement or any part hereof; or (c) [**]; provided that (i) the CBOT shall
take no other action which the CBOT, in its reasonable judgment, believes would
be contrary to LIFFE's interests relative to the Claim; (ii) LIFFE (or any
Person acting on behalf of or authorized by LIFFE), at its own expense, shall be
entitled to have sole conduct and control of all legal proceedings in connection
with the Claim or the settlement or other compromise thereof; (iii) the CBOT
shall give LIFFE (and any Person acting on behalf of or authorized by LIFFE) all
reasonable assistance therewith, at LIFFE's reasonable expense; and (iv) the
CBOT shall use good faith efforts to notify LIFFE as soon as possible, but in
any event within five (5) Business Days, after the CBOT becomes aware of the
Claim. Notwithstanding the foregoing, LIFFE shall have no obligation to defend,
indemnify, or hold any CBOT Indemnitee harmless from or against any Losses
incurred or suffered by such CBOT Indemnitee (x) as a result of the gross
negligence or willful misconduct of the CBOT Indemnitee or any Market
Participant, or (y) to the extent any Losses are attributable to the fact that
the use of the Licensed Technology and/or Equipment by the CBOT, other CBOT
Indemnitee, or any Market Participant has not been in accordance with this
Agreement.
15.2 By the CBOT. The CBOT shall defend, indemnify and hold LIFFE, its
Affiliates, and the officers, directors, employees, agents, and representatives
of LIFFE and its Affiliates ("LIFFE Indemnitees") harmless from and against all
Losses incurred or suffered by such LIFFE Indemnitees arising out of, or in
connection with, any third party Claim to the extent such Claim is based upon or
arises out of: (a) the CBOT's material breach of this Agreement or any part
hereof; (b) the gross negligence or willful misconduct of the CBOT, any of its
Affiliates, or any Members or Market Participants; (c) the CBOT's Property or
LIFFE's use thereof; (d) the CBOT's use of the Licensed Technology in
contravention of this Agreement; (e) any violation by any Market Participant of
the
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
25
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
restrictions set forth in Section 3.3.4; or (f) any Claim that the Services
provided hereunder, the Equipment or the Licensed Technology provided hereunder,
or the use thereof by or on behalf of the CBOT or Market Participants, infringes
or otherwise violates the Xxxxxx/eSpeed Patent; provided that (i) LIFFE shall
take no action which LIFFE, in its reasonable judgment, believes would be
contrary to the CBOT's interests relative to the Claim; (ii) the CBOT (or any
Person acting on behalf of or authorized by the CBOT), at its own expense, shall
be entitled to have sole conduct and control of all legal proceedings in
connection with the Claim or the settlement or other compromise thereof; (iii)
LIFFE shall give the CBOT (and any Person acting on behalf of or authorized by
the CBOT) all reasonable assistance in connection therewith at the CBOT's
reasonable expense; and (iv) LIFFE shall use good faith efforts to notify the
CBOT as soon as possible, but in any event within five (5) Business Days, after
LIFFE becomes aware of the Claim. Notwithstanding the foregoing, the CBOT shall
have no obligation to defend, indemnify, or hold any LIFFE Indemnitee harmless
from or against any Losses incurred or suffered by such LIFFE Indemnitee as a
result of the gross negligence or willful misconduct of the LIFFE Indemnitee.
16. Liability
---------
16.1 Specific Limitations. LIFFE shall have no liability to the CBOT for
any breach of this Agreement or any Losses (including, but not limited to, the
CBOT's inability to use any part of the Licensed Technology or Equipment and the
interruption or corruption of any data or information stored, used, generated or
transmitted on or via any Licensed Technology or Equipment) under this Agreement
arising from (a) any defect in the Licensed Technology or Equipment of which
LIFFE has not received notice of from the CBOT within five (5) Business Days
following the first date upon which the CBOT discovered or otherwise became
aware of such defect, (b) any Force Majeure Event, or (c) any Trading
Applications or other Third Party Materials.
16.2 General Limitation. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER FOR ANY LOSS, DAMAGE OR INJURY,
DIRECT OR INDIRECT, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF SUCH PARTY, ITS
AFFILIATES, OR THE OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF SUCH PARTY
OR OF ANY OF ITS AFFILIATES, EXCEPT THAT EACH PARTY SHALL ACCEPT LIABILITY FOR
(A) MATERIAL BREACH OF THIS AGREEMENT, (B) THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH PARTY, ITS AFFILIATES OR THE OFFICERS, EMPLOYEES, AGENTS OR
REPRESENTATIVES OF SUCH PARTY OR OF ANY OF ITS AFFILIATES, AND (C) FOR DEATH,
PERSONAL INJURY AND DIRECT PHYSICAL DAMAGE TO THE TANGIBLE PROPERTY OF THE OTHER
CAUSED BY SUCH PARTY, ITS AFFILIATES OR THE OFFICERS, EMPLOYEES, AGENTS OR
REPRESENTATIVES OF SUCH PARTY OR OF ANY OF ITS AFFILIATES. EXCEPT WITH REGARD TO
EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13 OR ITS
WARRANTIES SET FORTH IN SECTION 14, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
HEREUNDER FOR ANY INDIRECT OR CONSEQUENTIAL LOSS, OR FOR LOSS OF PROFITS,
GOODWILL OR CONTRACTS, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR
OTHERWISE, AND WHETHER OR NOT EITHER PARTY SHALL HAVE BEEN ADVISED OF OR
OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
16.3 Limitation of Liability. The cumulative liability of LIFFE under this
Agreement, the Software License Agreement and the Managed Services Agreement,
during the respective terms of this Agreement, the Software License Agreement
and the Managed Services Agreement, however arising, will not exceed [**];
provided, however, that the limitations set forth in this Section 16.3 will not
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
26
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
apply to (a) liability of LIFFE for death or personal injury; (b) fraudulent
acts or omissions; or (c) violations of the confidentiality obligations of
Section 13.
16.4 Claims Against Individuals. Where the liability of a Party (including,
but not limited to, any liability with respect to the officers, employees,
agents or representatives of a Party or any of its Affiliates) has been excluded
or restricted hereunder, each Party agrees that it shall not bring any claim
against any officers, employees, agents or representatives of the other Party or
any of its Affiliates or join such officers, employees, agents or
representatives in any claim such that the liability of such officers,
employees, agents or representatives and such other Party, when taken together,
would be greater than the liability of such other Party hereunder.
17. Dispute Resolution
17.1 Escalation. As used herein, "Disputes" means any claims, disputes,
controversies, and other matters in question between the Parties arising out of
or relating to this Agreement or the breach hereof (excluding any third party
claims against LIFFE or the CBOT subject to indemnification pursuant to Section
15, but including any disagreements as to indemnification rights hereunder). Any
Dispute between the Parties shall in the first instance be referred to the
Parties' Relationship Managers for discussion and resolution. If the Dispute is
not resolved by the Relationship Managers within five (5) Business Days, the
Dispute will be referred to the Managing Director of LIFFE Market Solutions and
a representative of the CBOT at an equivalent level, who must discuss and, if
appropriate, meet within five (5) Business Days to attempt to resolve the
Dispute. If the Dispute is not resolved by such second representatives within
five (5) Business Days, the Dispute will be referred to the Parties' Chief
Executive Officers who must discuss and, if appropriate, meet within five (5)
Business Days to attempt to resolve the Dispute. If any representative of either
Party referred to in this Section 17.1 is not available for any reason, the
affected Party shall be entitled to appoint an appropriate substitute.
17.2 Mediation. If the Parties cannot resolve any Dispute in accordance
with Section 17.1 within thirty (30) Business Days, they may refer the Dispute
to mediation, to be conducted by a single mediator in (i) Chicago, Illinois, if
LIFFE has initiated the Dispute, or (ii) London, England, if the CBOT has
initiated the Dispute. The Parties shall use good faith efforts to agree upon a
mediator. If the Parties are unable to agree upon a mediator within thirty (30)
Business Days, the Parties may seek judicial resolution and remedy of the
Dispute without first proceeding with mediation. The Parties shall use good
faith efforts to hold the mediation within thirty (30) Business Days following
the selection of a mediator. Unless otherwise agreed by the Parties, no decision
resulting from the mediation proceedings will be binding upon the Parties.
Unless expressly provided herein, each Party will bear its own costs (including
attorneys fees) relating to the mediation, but the Parties will share equally
the fees and expenses charged by the mediator.
17.3 Arbitration. If a Dispute is not resolved in accordance with Section
17.2, then either Party may provide written notice to the other Party of an
intention to refer the Dispute to arbitration. Any such arbitration shall be:
(a) binding; (b) administered by the International Centre for Dispute Resolution
("ICDR") of the American Arbitration Association ("AAA"); (c) conducted in
accordance with the International Arbitration Rules of the AAA (the "AAA
Rules"), as such AAA Rules may be amended from time to time, except to the
extent this Section 17.3 provides otherwise; (d) held in Chicago, Illinois, if
the Dispute is initiated by LIFFE and in London, England if the Dispute is
initiated by the CBOT; and (e) conducted using the English language. Upon filing
a claim, the filing Party will simultaneously provide written notice of such
claim to the other Party and to the relevant administrator at the ICDR.
17.3.1 Selection of Arbitrators. Within ten (10) Business Days of
receipt of the ICDR initiation letter, each Party shall select
one neutral individual to act as arbitrator.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
27
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
In addition, the Parties shall submit a written request to AAA
to use its normal procedures pursuant to the AAA Rules to
appoint the third arbitrator within five (5) Business Days of
AAA's receipt of such request. The arbitrator appointed by AAA
shall serve as the chairperson of the arbitration panel. The
Parties agree that the selection of arbitrators must be
completed within twenty-five (25) Business Days of receipt by
both Parties of the ICDR initiation letter.
17.3.2 Cooperation. The Parties shall cooperate with each other in
causing the arbitration to be held in as efficient and
expeditious a manner as practicable, and in this respect to
furnish such documents and make available such personnel as the
arbitrators may request.
17.3.3 Reduction of Losses. The Parties have selected arbitration to
expedite the resolution of Disputes and to reduce the costs and
burdens associated with litigation. The Parties agree that the
arbitrators should take these concerns into account when
determining whether to authorize discovery and, if discovery is
authorized, the scope of permissible discovery and other
hearing and pre-hearing procedures. The arbitrators shall
render an award, including a written decision, within ninety
(90) calendar days after the arbitration notice is provided,
unless the Parties otherwise agree or the arbitrators make a
finding that a Party has carried the burden of showing good
cause for a longer time period.
17.3.4 Binding Decision. The decision or award of the arbitrators will
be final and binding, and may be used as a basis for judgment
thereon in any jurisdiction. The award shall be in writing,
shall be signed by a majority of the arbitrators, and shall
include a written decision setting out the reasons for the
disposition of any claim.
17.3.5 Punitive Damages. Without limiting any other remedies that may
be available under applicable law, the arbitrators shall have
no authority to award punitive damages.
17.3.6 Confidentiality. All proceedings and decisions of the
arbitrators shall be maintained in confidence to the extent
legally permissible, and shall not be made public by any Party
or any arbitrator without the prior written consent of the
Parties, except as may be required by applicable laws.
17.3.7 Losses. Each Party shall bear its own costs and attorneys fees,
and the Parties shall equally bear the fees, costs, and
expenses of the arbitrators and the arbitration proceedings
charged by the arbitrators ("Arbitration Fees"); provided,
however, that (a) the filing Party shall pay any filing fees
charged by the AAA; and (b) the arbitrators may exercise
discretion to award costs, but not attorneys fees or
Arbitration Fees, to the prevailing Party.
17.3.8 Obligations. The commencement and pendency of an arbitration
under this Section 17.3 shall not relieve either of the Parties
of their respective obligations under this Agreement.
17.3.9 Limitations. A demand for arbitration shall not be made after
the date when institution of legal or equitable proceedings
based upon such dispute would be barred by the applicable
statute of limitations or laches under the laws of the
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
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CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
State of Illinois, and the Parties expressly waive any causes of action relating
to any Dispute not brought within the period set forth therein.
17.4 Limitations. Notwithstanding Sections 17.2 and 17.3, nothing herein
restricts the rights of either Party to seek judicial resolution and remedy of
(i) any Disputes, following compliance with Sections 17.2 and 17.3, or (ii) any
claims, disputes, controversies, or other matters in question between the
Parties arising out of either Party's breach of its obligations pursuant to
Section 13 or Section 14.
18. Entire Agreement
This Agreement, together with the Software License Agreement and Managed
Services Agreement entered into by the Parties, constitutes the entire
understanding between the Parties with respect to the subject matter hereof and
supersedes all prior representations, agreements, negotiations and discussions
between the Parties, including that Letter Agreement entered into by the Parties
as of February 4, 2003.
19. Schedules
Each of the schedules attached hereto is a part of and incorporated into
this Agreement. Unless otherwise indicated therein, all capitalized terms
contained within the Schedules will have the meanings ascribed to them in the
main body of this Agreement.
20. Amendments
Except as expressly provided for herein, this Agreement may be amended only
by an instrument in writing signed on behalf of a duly authorized representative
of each Party.
21. Binding Provisions/Third Party Beneficiaries
This Agreement is binding upon, and shall inure to the benefit of, the
Parties and their respective administrators, legal representatives, successors,
and permitted assigns. The Parties agree that no provision of this Agreement is
intended, expressly or by implication, to purport to confer a benefit or right
of action upon a third party (whether or not in existence, and whether or not
named, as of the Effective Date).
22. Assignment and Sublicensing
Except as otherwise expressly provided herein, the CBOT shall not assign,
transfer or sublicense any right or obligation under this Agreement without the
prior written approval of LIFFE. Notwithstanding the foregoing, the CBOT may
assign this Agreement to the Electronic Chicago Board of Trade, Inc., provided
that, in the event of any assignment, the CBOT will provide to LIFFE a written
guarantee of the performance of all obligations of the Electronic Board of
Trade, Inc., the specific terms of which guarantee shall be agreed upon by the
Parties. LIFFE may, in LIFFE's sole discretion, assign this Agreement and/or
some or all of its rights and obligations under this Agreement to an Affiliate
of LIFFE that is capable of performing the obligations of LIFFE under this
Agreement.
23. Force Majeure
If the performance of this Agreement by either Party is prevented,
hindered, delayed or otherwise made impracticable by reason of any Force Majeure
Event, that Party shall be excused from such performance to the extent that it
is prevented, hindered or delayed by such cause. In the event a Party
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
29
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
becomes aware of a Force Majeure Event that will affect its performance under
this Agreement, it shall notify the other Party as soon as reasonably
practicable. The Parties shall thereafter work together to take reasonable steps
to mitigate the effects of any inability to perform, if practicable.
24. Separability of Provisions
Each provision of this Agreement shall be considered separable; and if, for
any reason, any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, unlawful, or unenforceable, such
determination shall not affect the enforceability of the remainder of this
Agreement or the validity, lawfulness, or enforceability of such provision in
any other jurisdiction.
25. Waiver
The failure of a Party to exercise or enforce any right conferred upon it
by this Agreement shall not be deemed to be a waiver of any such right or
operate so as to bar the exercise or enforcement thereof at any time or times
hereafter.
26. Remedies Not Exclusive
No remedy conferred by any provision of this Agreement is intended to be
exclusive of any other remedy, except as expressly provided in this Agreement,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing in law or in equity or
by statute or otherwise.
27. Notices
Except as otherwise expressly provided herein, all notices, certifications,
requests, demands, payments and other communications hereunder: (a) shall be in
writing; (b) may be delivered by certified or registered mail, postage prepaid;
by hand; by facsimile; or by any internationally recognized private courier; (c)
shall be effective (i) if mailed, on the date ten (10) days after the date of
mailing or (ii) if hand delivered, faxed, or delivered by private courier, on
the date of delivery; and (d) shall be addressed as follows:
If to the CBOT:
Board of Trade of the City of Chicago, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000-X
Xxxxxxx, Xxxxxxxx 00000 U.S.A.
Attention: Xxxxx X. Xxxxx
If to LIFFE:
LIFFE Administration and Management
Xxxxxx Xxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxx, XX0X 0XX (England)
Attention: Company Secretary
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
30
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
or to such other address or addresses as may hereafter be specified by notice
given by one Party to the other.
28. Announcements
Neither Party may refer to this Agreement in any publicity or advertising
materials without the other Party's prior written consent. 29. Interpretation
29.1 Headings, Gender, "Including," "Control" and Person. References to sections
and schedules are to sections of and schedules to this Agreement unless
otherwise indicated. Section headings are inserted for convenience of reference
only and shall not affect the construction of this Agreement. The masculine
gender shall include the feminine and the singular number shall include the
plural, and vice versa. Any use of the word "including" will be interpreted to
mean "including, but not limited to," unless otherwise indicated. Any use of the
terms "controlling," "controlled by" or "under common control with" shall have a
meaning consistent with the definition of "Control" set forth in Section 1.
References to any Person (including the Parties and any other entities referred
to) shall be construed to mean such Person and its successors in interest and
permitted assigns, as applicable. 29.2 Inconsistency. In the event of any
inconsistency between the terms of the main body of this Agreement and any
schedule hereto, the terms of the main body of this Agreement will govern to the
extent of the inconsistency. 30. Further Assurances
The Parties shall execute all such further documents and do all such
further acts as may be necessary to carry the provisions of this Agreement into
full force and effect.
31. Governing Law
The validity and effectiveness of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Illinois, without giving effect to the provisions, policies or principles of any
state law relating to choice or conflict of laws. Subject to Section 17, any
legal action or proceeding with respect to this Agreement may be brought
exclusively in the Federal or state courts located in Chicago, Illinois,
including the United States District Court for the Northern District of
Illinois. The United Nations Convention on Contracts for the International Sale
of Goods shall not apply to this Agreement and is hereby disclaimed.
32. Counterparts
This Agreement may be executed in two counterparts, each of which when so
executed and delivered shall be deemed an original, and both of which together
shall constitute but one and the same instrument.
[Remainder of page intentionally left blank.
Signature page follows]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
31
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
IN WITNESS WHEREOF, the Parties have executed this Development Services
Agreement as of the Effective Date.
LIFFE ADMINISTRATION AND MANAGEMENT, a
company incorporated in England and Wales
By:
----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
BOARD OF TRADE OF THE CITY OF CHICAGO, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Its:
---------------------------------------
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
CONFIDENTIAL TREATMENT REQUESTED BY
CBOT HOLDINGS, INC.
SCHEDULES
Schedule A - Specifications
Schedule B - Summary Project Plan
Schedule C - Software and Documentation
Schedule D - Equipment Installation Sites
Schedule E - Equipment
Schedule F - Software, Locations and Operating Systems
Schedule G - Training of CBOT Staff
Schedule H - Change Control Procedures
Schedule I - CBOT's Acceptable Use and Harassment Policies
Schedule J - LIFFE Security Policy
Schedule K - Charge Rates/Grades/Connection Service Charges
Schedule L - LIFFE Travel/Expense Policy
Schedule M - CBOT Dependencies
Schedule N - Schematics
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE A
SPECIFICATIONS
--------------
[*213 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE B
SUMMARY PROJECT PLAN
--------------------
[**]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE C
SOFTWARE AND DOCUMENTATION
--------------------------
[*2 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE D
EQUIPMENT INSTALLATION SITES
----------------------------
[*18 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE E
EQUIPMENT
----------
[*9 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE F
SOFTWARE, LOCATIONS, AND OPERATING SYSTEMS
------------------------------------------
[*2 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE G
TRAINING OF CBOT STAFF
----------------------
[*4 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE H
CHANGE CONTROL PROCEDURES
-------------------------
1. OVERVIEW
The change control procedures set forth herein and diagrammed in chart form in
Appendix 1 to this Schedule H, shall be used whenever the CBOT or LIFFE has a
requirement to change any component of the Services.
LIFFE's Project Manager will be the principal contact at LIFFE regarding the
change control procedures and will serve as the administrator of the Change
Control Procedures. The representative of the Party requesting the change will
be referred to herein as the "Change Requester."
2. PROCEDURES
2.1 SUBMIT CHANGE REQUEST
(a) To initiate the change control process, the Change Requester must set
forth on a Change Request Form, a copy of which is attached as
Appendix 2 to this Schedule H: (i) the name of the Party requesting
the change, (ii) the Change Requester's name, (iii) the date of the
request, (iv) a description of the desired change, and (v) the
reason(s) for requesting the change.
(b) The Change Requester must then send the Change Request Form to LIFFE's
Project Manager.
(c) LIFFE's Project Manager will thereafter acknowledge receipt of the
Change Request Form by (i) issuing a number to correspond with the
Change Request Form; (ii) noting on the Change Request Form the date
of receipt of the Change Request Form, the name of LIFFE's Project
Manager, the Change Request Form number issued, and the date of
issuance of such number; and (iii) signing and dating the appropriate
portion of the Form. LIFFE's Project Manager will then (x) send to the
Change Requester and, if the Party requesting the change is LIFFE, to
the CBOT's Project Manager, a copy of the acknowledged Change Request
Form and (y) record on the Change Request Form the date such
acknowledged Change Request Form was sent.
2.2 PRELIMINARY REVIEW OF CHANGE REQUEST
Following acknowledgment of receipt of the Change Request Form, LIFFE's
Project Manager will undertake a preliminary review of the Change Request Form
to ensure that the Change Requester has provided the requisite details. If
LIFFE's Project Manager, in his or her reasonable judgment, determines that the
information provided is insufficient, LIFFE's Project Manager will contact the
Change Requester to request additional information. This cycle will continue
until (i) the requested information is provided or (ii) the Parties agree to
file the Change Request Form and close the matter accordingly. LIFFE's Project
Manager will not proceed with further assessment of the change request until and
unless such additional information is obtained.
2.3 DETERMINATION OF WHETHER AN INITIAL ASSESSMENT IS TO BE CONDUCTED
(a) Once LIFFE's Project Manager determines a Change Request Form provides
sufficient information, LIFFE's Project Manager will, within ten (10)
Business Days of completion
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-1
of the portions of the Change Request Form noted above, contact the
Change Requester and/or, if the Party requesting the change is LIFFE,
the CBOT's Project Manager, to discuss (i) whether an initial
assessment of the change request is to be undertaken and (ii) the date
by which any initial assessment should be completed.
(b) If LIFFE's Project Manager and the Change Requester and/or, if the
Party requesting the change is LIFFE, the CBOT's Project Manager,
agree that no initial assessment of the change request is to be
undertaken, LIFFE's Project Manager will file the Change Request Form
and close the matter accordingly.
(c) In the circumstance where more than one initial assessment has been
undertaken for a particular change request, the Parties may agree to
halt the process of assessing the change request, in which case
LIFFE's Project Manager will file the Change Request Form and close
the matter accordingly.
(d) [**]
(e) [**]
2.4 INITIAL ASSESSMENT
(a) If LIFFE's Project Manager and the Change Requester and/or, if the
Party requesting the change is LIFFE, the CBOT's Project Manager,
agree that an initial assessment is to be undertaken, LIFFE's Project
Manager will, unless otherwise agreed, commence such initial
assessment within ten (10) Business Days of such agreement and shall
use reasonable efforts to complete the initial assessment by the
agreed upon completion date.
(b) As applicable to the particular change request, [**]
(c) The Party requesting the change shall use reasonable efforts to ensure
that the Change Requester and other appropriate personnel are
available to provide to LIFFE's Project Manager information or other
input or assistance relating to the initial assessment.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-2
2.5 ACCEPTANCE OF INITIAL ASSESSMENT
(a) Once an initial assessment has been completed, LIFFE's Project Manager
will attach to the relevant Change Request Form a copy of any written
results of the initial assessment and provide to the Change Requester
and, if the Party requesting the change is LIFFE, the CBOT's Project
Manager a copy of such results. LIFFE's Project Manager and the Change
Requester and/or, if the Party requesting the change is LIFFE, the
CBOT's Project Manager, will then discuss the results of the
assessment and determine (i) whether to accept or reject the initial
assessment and (ii) if the initial assessment is rejected, whether to
file the Change Request Form and close the matter or to continue
performing the initial assessment.
(b) If the initial assessment is rejected and no further work on the
initial assessment is to be undertaken, LIFFE's Project Manager will
file the Change Request Form and close the matter accordingly.
(c) If the initial assessment is rejected and it is agreed that additional
work on the initial assessment is to be conducted, LIFFE's Project
Manager and Change Requester and/or, if the Party requesting the
change is LIFFE, the CBOT's Project Manager, will agree upon a revised
date of completion of the initial assessment and LIFFE's Project
Manager will carry out such further work and repeat the applicable
procedures set out in Paragraphs 2.4(b) and 2.5(a). This cycle will
continue until LIFFE's Project Manager and the Change Requester
and/or, if the Party requesting the change is LIFFE, the CBOT's
Project Manager, either (i) agree to the initial assessment and senior
representatives of each Party have executed the appropriate section of
the Change Request Form, or (ii) agree to file the Change Request Form
and close the matter accordingly.
2.6 DETAILED PLAN
(a) If LIFFE's Project Manager and the Change Requester and/or, if the
Party requesting the change is LIFFE, the CBOT's Project Manager,
agree to the initial assessment, then senior representatives of each
Party will indicate such acceptance on the Change Request Form by
signing the appropriate section of the Change Request Form.
(b) LIFFE's Project Manager will then coordinate the production of a
"detailed plan" for the requested change and shall use reasonable
efforts to complete the "detailed plan" by the agreed upon completion
date. Each such "detailed plan" will include (i) the criteria for
acceptance relating to the change requested, as required pursuant to
Section 5.1 of the Development Services Agreement, (ii) an estimated
schedule for implementation of the change requested, and (iii) the
Charges which would be associated with implementation of the requested
change.
(c) The Parties shall use reasonable efforts to ensure that appropriate
personnel are available to provide to LIFFE's Project Manager
information or other input or assistance relating to creation of the
detailed plan.
2.7 ACCEPTANCE OF DETAILED PLAN
(a) Once the detailed plan has been completed, LIFFE's Project Manager
will attach to the relevant Change Request Form a copy of the detailed
plan and provide to the Change Requester and, if the Party requesting
the change is LIFFE, the CBOT's Project Manager a copy of such
detailed plan. Thereafter, LIFFE's Project Manager and the Change
Requester and/or, if the Party requesting the change is LIFFE, the
CBOT's Project Manager, will review the completed detailed plan and
determine (i) whether to accept or
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-3
reject the detailed plan and (ii) if the detailed plan is rejected,
whether to file the Change Request Form and close the matter or to
continue working on the detailed plan.
(b) If the detailed plan is rejected and no further work on the detailed
plan is to be undertaken, LIFFE's Project Manager will file the Change
Request Form and close the matter accordingly.
(c) If the detailed plan is rejected and it is agreed that additional work
on the detailed plan is to be conducted, LIFFE's Project Manager will
carry out such further work and repeat the applicable procedures set
forth in Paragraphs 2.6(b) and 2.7(a). This cycle will continue until
LIFFE's Project Manager and the Change Requester and/or, if the Party
requesting the change is LIFFE, the CBOT's Project Manager, accept the
detailed plan or agree to file the Change Request Form and close the
matter accordingly.
2.8 IMPLEMENT SOLUTION
(a) If LIFFE's Project Manager and Change Requester and/or, if the Party
requesting the change is LIFFE, the CBOT's Project Manager, agree to
accept the detailed plan, then senior representatives of each Party
(i) will indicate acceptance of the change requested and the detailed
plan by signing the appropriate section of the Change Request Form and
(ii) LIFFE's Project Manager will coordinate the implementation of the
change requested as per the detailed plan.
(b) The Change Requestor shall use reasonable efforts to ensure that
appropriate personnel are available to provide assistance with
implementing the change requested as per the detailed plan.
(c) LIFFE's Project Manager will periodically provide to the Parties a
report of the current status of the implementation of the change
requested.
2.9 COMPLETE CHANGE REQUEST
(a) Once implementation has been completed, senior representatives of the
Parties will each so indicate by signing the appropriate section of
the Change Request Form.
(b) LIFFE's Project Manager will thereafter (i) arrange for an invoice to
be sent to the CBOT for any Charges associated with the build, test,
and/or implementation as appropriate of the requested change and (ii)
file the completed, and fully executed, Change Request Form.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-4
Appendix 1 to Schedule H
[FLOW CHART APPEARS HERE]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-5
Appendix 2 to Schedule H
Change Request Form
--------------------------------------------------------------------------------
Change Request No.
--------------------------------------------------------------------------------
================================================================================
Change Requester Details & Authorization
================================================================================
Name of Change Requester: ______________ Date of Request: _____/____/____
Party Requesting Change: [All dates required to be set out in this
Change Request Form must be in the format
dd-mmm-yyyy e.g 29 Jan 2003.]
____ LIFFE
____ CBOT
================================================================================
Description of Change
Continued on separate sheet - YES/NO
================================================================================
Reason for Requested Change
Continued on separate sheet - YES/NO
================================================================================
Change Request Logged by LIFFE Project Manager
Change Request Number Issued: __________
Date Request Received: / / Date Number Issued:___/___/______
-------- --------- --------
Acknowledgement Sent: ___/___/______
Name of the CBOT's Project Manager [If LIFFE is the Party requesting the
Change]:
Name of LIFFE's Project Manager: _______________________
Signature of LIFFE's Project Manager: ____________________
================================================================================
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-6
================================================================================
Initial Assessment Completed (A copy of the written results of the initial
assessment is to be attached.)
Agreed Initial Assessment Completion Date ___/___/______
Initial Assessment Accepted
[To be signed by senior representatives of each Party.]
Each of the signatories below hereby represents that he or she is authorized to
agree to the initial assessment on behalf of the entity for which he or she has
signed.
LIFFE:
Name: _________________________ Signature: _________________________
Date: ___/___/______
CBOT:
Name: _________________________ Signature: _________________________
Date: ___/___/______
================================================================================
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-7
================================================================================
Detailed Plan Completed (A copy of the written results of the initial assessment
is to be attached.)
Agreed Detailed Plan Completion Date ___/___/______
Detailed Plan Agreed; Implementation to Commence
[To be signed by senior representatives of each Party.]
Each of the signatories below hereby represents that he or she is authorized to
accept the detailed plan and this Change Request Form on behalf of the entity
for which he or she has signed.
LIFFE:
Name: _________________________ Signature: _________________________
Date: ___/___/______
CBOT:
Name: _________________________ Signature: _________________________
Date: ___/___/______
================================================================================
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-8
Change Implemented and Accepted
[To be signed by senior representatives of each Party.]
Each of the signatories below hereby represents that he or she is authorized to
accept the detailed plan and this Change Request Form on behalf of the entity
for which he or she has signed.
LIFFE:
Name: _________________________ Signature: _________________________
Date: ___/___/______
CBOT:
Name: _________________________ Signature: _________________________
Date: ___/___/______
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
H-9
SCHEDULE I
CBOT'S ACCEPTABLE USE AND HARASSMENT POLICIES
---------------------------------------------
Chicago Board of Trade
Information Security Program Management
Acceptable Use Policy
Requirements
Table of Contents
1. User Responsibilities ...............................................Page 2
2. Prohibited Uses .....................................................Page 2
3. Operational Data ....................................................Page 3
4. Right to Privacy ....................................................Page 4
5. Discoverability of Electronic Information ...........................Page 4
6. Audits of the System ................................................Page 4
7. Monitoring ..........................................................Page 4
8. Non-Compliance Disciplinary Actions .................................Page 4
Chicago Board of Trade
Information Security Program Management
Acceptable Use Policy
General Policy
Chicago Board of Trade (CBOT(R)) requires that the use of the computing systems
and facilities located at, or operated by, the Chicago Board of Trade (CBOT)
will be conducted in an effective, efficient, ethical, and lawful manner.
This Acceptable Use Policy (referred to as "Policy") supersedes any and all
prior policies relating to the subject matter contained herein. The CBOT
reserves the right to change or supplement this Policy at any time.
Purpose
The Chicago Board of Trade's Acceptable Use Policy is intended to assure that
the use of the computing systems and facilities located at, or operated by, the
Chicago Board of Trade (CBOT) is conducted in an effective, efficient, ethical,
and lawful manner.
Applicability
This policy applies to all Chicago Board of Trade systems users of the computing
systems and facilities located at, or operated by, the Chicago Board of Trade
(CBOT).
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
I-1
Key Definitions
CBOT Computing Systems and Facilities - Any system including but not
limited to individual desktop and laptop computers, file and network
servers, networks, floppy disks, magnetic tapes, CDROM devices,
telecommunications systems, or other computing and storage devices provided
or supported by any CBOT division. Throughout the Policy, the CBOT's
Computing Systems and Facilities are collectively referred to as "CBOT
Systems".
Use - The use of data/programs stored on CBOT Systems.
User - The person granted an account or accounts on CBOT Systems in order
to perform work in support of a CBOT program or project. A user may be an
employee, temporary help, contractor, consultant, or third party with whom
special arrangements have been made.
Note: The terms user, worker, and employee are all used to represent a
full-time employee, part-time employee, temporary help, contractor,
consultant, or third party that has special arrangements that give
telecommuting access to CBOT systems.
Responsibility for Implementing the Policy
Managers of all the Chicago Board of Trade systems users of the computing
systems and facilities located at, or operated by, the Chicago Board of Trade
(CBOT) are responsible for assuring that the use of these computing systems and
facilities is conducted in an effective, efficient, ethical, and lawful manner.
Requirements
3. User Responsibilities The following requirements govern User
Responsibilities:
3.1 CBOT Systems are owned by CBOT and are operated by CBOT employees,
consultants, and other third parties such as temporary workers and are to
be used for authorized CBOT purposes only. Users are authorized to prepare
and store incidental personal data on CBOT systems provided that such usage
does not interfere with or affect the user's performance or violate the law
or any CBOT standards of conduct. The CBOT assumes no liability for loss,
damage, disclosure or misuse of any such incidental personal data stored on
CBOT Systems.
3.2 Users are responsible for protecting any information used and/or stored
within their CBOT accounts in accordance with the CBOT Information Security
Policies and Standards.
3.3 Users are required to report any weaknesses in CBOT Systems and any
incidents of possible misuse or violation of this Policy to their
supervisor and Information Security Program management.
4. Prohibited Uses Prohibited uses of CBOT Systems include but are not limited
to the following:
4.1 Users shall not attempt to access any data or programs contained on CBOT
Systems for which they do not have authorization. -
4.2 Users shall not attempt to access CBOT Systems remotely except to transmit
or retrieve electronic mail (e-mail) or voicemail messages unless
authorized by a Vice President or Department Director.
4.3 Users shall not attempt to access non-CBOT Systems (e.g. the Internet or
external dial-up facilities) from CBOT Systems unless authorized by a Vice
President or Department Director.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
I-2
4.4 Users shall not install software programs on CBOT Systems. Software
programs may be installed on CBOT Systems only by Departmental LAN (Local
Area Network) Administrators or those authorized by Information Technology
Department Senior Management.
4.5 Users may not use software that is not owned by, or licensed to, the CBOT.
This includes using CBOT Systems to copy any software documents or other
information protected under copyright law.
4.6 Users shall not make unauthorized copies of system configuration files
(e.g. password files) for their own personal use or on the behalf of
others. -
4.7 Users shall not purposely engage in activity with the intent to: -
. harass, discriminate against, or intimidate others;
. degrade the performance of CBOT systems;
. deprive an authorized CBOT user access to a CBOT resource;
. obtain extra resources beyond those allocated (e.g. circumvent disk
quotas or otherwise violate resource allocation policies);
. circumvent security measures or gain access to a CBOT System for which
proper authorization has not been granted.
4.8 Users shall not purposely create, store, transmit, or view illegal,
offensive, or inappropriate material, including but not limited to
pornography, hate/crime/violence-related material, and drug/alcohol-related
material.
4.9 Users shall not use CBOT Systems to frequently engage in the solicitation
of non-CBOT business ventures or any political, religious, charitable, or
personal causes unless authorized in writing by the CBOT.
4.10 Users shall not download, install, or run security programs or utilities
which reveal weaknesses in the security of a system.
4.11 Users shall not remove CBOT Systems (e.g. software, hardware, design
specifications) from the CBOT premises unless authorized by a Vice
President or Department Director. -
4.12 Users shall not forward any attorney-client message from CBOT legal counsel
to anyone else without said counsel's authorization. -
4.13 Users shall not transmit non-public information or attorney-client
communications via the Internet or other extranet connectivity. -
5. Operational Data The following requirements govern Operational Data:
5.1 Users may not access "operational data" on CBOT Systems (i.e. non-public
data that relates to the operations of the CBOT, its members, member firms,
or other market participants), except pursuant to a regulatory purpose and
upon approval by a Vice President or Department Director.
5.2 Users authorized to access operational data may not update, delete, or
modify any such data unless authorized by a Vice President or Department
Director. -
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
I-3
5.3 Non-CBOT users may not access operational data on CBOT Systems except
pursuant to a regulatory purpose, upon approval by a Vice President or
Department Director and upon execution of a confidentiality agreement.
6. Right to Privacy The following requirements govern Right to Privacy:
The CBOT has legal ownership of all information stored on or transmitted from
CBOT Systems. Therefore, users should have no expectation of privacy associated
with the information they store in or send through CBOT Systems.
To properly maintain and manage this information, the CBOT reserves the right to
access, review, monitor, copy, modify, and delete any information (including
personal data) transmitted through or stored on CBOT Systems and, where
appropriate, to disclose it to any party.
7. Discoverability of Electronic Information The following requirements govern
Discoverability of Electronic Information:
Electronic information transmitted or stored anywhere on CBOT Systems is subject
to discovery and may be admissible in court or administrative proceedings.
8. Audits of the System The following requirements govern Audits of the
System:
To ensure compliance with these policies, the CBOT may, without notice, conduct
periodic audits of CBOT Systems. The CBOT reserves the right to conduct special
audits at any time when a violation of this Policy is suspected. The CBOT will
investigate all information security incidents and report them to senior
management.
9. Monitoring The following requirements govern Monitoring:
9.1 In general terms, the CBOT does not engage in blanket monitoring of
employee communications on CBOT systems. The CBOT does, however, reserve
the right to monitor, access, retrieve, read, and/or disclose employee
communications when: (a) a legitimate business need exists that cannot be
satisfied by other means, (b) the involved employee is unavailable and
timing is critical to a business activity, (c) there is reasonable cause to
suspect criminal activity or policy violation, or (d) monitoring is
required by law, regulation, or third-party agreement.
9.2 CBOT employees will be notified of all CBOT Systems monitoring policies.
CBOT employees and their managers will be informed about all monitoring
activities with the only permissible exception being investigations of
suspected criminal activity.
10. Non-Compliance Disciplinary Actions The following requirements govern
Non-Compliance Disciplinary Actions:
10.1 The CBOT reserves the right to revoke the privileges of any user at any
time. Any noncompliance with these CBOT Systems user requirements will
constitute a security violation and will be reported to the management of
the CBOT user and Information Security Program Management. Security
violations may result in short-term or permanent loss of access to CBOT
Systems. Serious violations will result in disciplinary action, including
termination of employment.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
I-4
10.2 Users who abuse their CBOT Systems privileges may also be subject to
external disciplinary action including civil or criminal legal action. By
making use of CBOT Systems, users consent to allow all information they
store on CBOT Systems to be divulged to law enforcement at the discretion
of CBOT senior executive management.
Harassment Policy
Sexual harassment is an infringement of an employee's, applicant's or
consultant's right to work in an environment free from unlawful sexual pressure.
The CBOT(R) is strongly committed to a workplace free of sexual harassment. In
keeping with this policy, the CBOT will not tolerate sexual harassment of
employees, applicants, or consultants by other employees or non-employees in the
workplace.
Sexual harassment consists of unlawful verbal or physical conduct directed at a
person when that conduct is based on that person's sex and has a substantial
adverse effect on him or her in the workplace. Such conduct may include, but is
not limited to, the following:
1. requests for sexual favors that may or may not be accompanied by threats or
promises of preferential treatment with respect to an individual's
employment status;
2. verbal, written or graphic communications of a sexual nature, including
lewd or sexually suggestive comments, off-color jokes of a sexual nature or
displays of sexually explicit pictures, photos, posters, cartoons, books,
magazines or other items; or
3. patting, pinching, hitting or any other unnecessary contact with another
person's body or threats to take such action.
Any employee, applicant or consultant who believes that he or she has been
sexually harassed in the workplace should report the harassment as soon as
possible after it occurs to their supervisor. Any complaint regarding harassment
by a CBOT employee should be presented to the complaining individual's
supervisor or the CBOT Human Resources Department. Any supervisor who receives
such a complaint must notify the Human Resources Department of the complaint as
soon as possible. Complaints pertaining to harassment by members or member firm
employees should be directed to the head of Investigations in the Office of
Investigations and Audits. Complaints pertaining to harassment by other
non-employees should be directed to the Human Resources Department. The CBOT
will thoroughly investigate all complaints and will keep them confidential, only
disclosing them on a "need-to-know" basis.
The CBOT will not retaliate against any person who has been harassed and/or has
reported the harassment. No supervisor or other employee may in any way base an
employment decision regarding a person on the fact that the person has been
harassed and/or has reported the harassment to the CBOT.
The CBOT will not tolerate any violations of this policy. Violations of this
policy by employees or consultants will subject the offending employee(s) or
consultant(s) to appropriate disciplinary action up to and including discharge
from employment or termination of services. Members and their employees who
violate this policy will also be subject to appropriate disciplinary action.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
I-5
SCHEDULE J
LIFFE SECURITY POLICY
---------------------
[*2 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE K
CHARGE RATES/GRADES/CONNECTION SERVICE CHARGES
----------------------------------------------
[*3 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE L
LIFFE TRAVEL/EXPENSE POLICY
---------------------------
1. Air Travel
All LIFFE staff travel British Airways Club Class for any journey in excess of 4
hours. If a Business Class seat is not available or the time or airport of
departure is not convenient, then the traveler may choose Business Class with
Virgin Atlantic. If Business Class Seats with neither British Airways nor Virgin
Atlantic are available within a 2 hour window either side of the preferred
departure time, then the traveler may choose Business Class with any other
airline.
If the journey is less than 4 hours then Economy Class travel will be used.
Within the U.S. we do not have a limitation on which airlines are selected.
2. Hotels
LIFFE staff will reside in reasonable accommodation when staying away from home
overnight on business. This is dependant upon location and duration, but LIFFE
suggests that a rate no greater than [**] per night is reasonable for the staff
in the U.S.
Accommodation for consultants over weekends will be charged.
3. Expenses
LIFFE generally does not expect the staff working away from the office to incur
average general expenses in excess of [**] per day. This will include all local
travel to and from the CBOT office, meals, calls, laundry, etc.
All expenses except those of an exceptional nature and pre-agreed by the client,
will be not be charged. Exceptional expenses will be charged and identified
individually on any invoice.
4. General
The CBOT will not be charged for the time a LIFFE consultant is on flights
unless LIFFE incurs a charge. This would only be the case where the consultant
is a staff contractor.
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
L-1
SCHEDULE M
CBOT DEPENDENCIES
-----------------
[*2 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
SCHEDULE N
SCHEMATICS
----------
[*10 pages omitted*]
Confidential Information Omitted and
Filed Separately with the Commission.
Omitted Portions Indicated by [**].
