Exhibit 10.32
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Non-exclusive Software License Agreement
This Non-exclusive Software License Agreement (this "Agreement") is entered into
between the following (each a "Party" and collectively the "Parties"):
1. Deutsche Borse Aktiengesellschaft, Xxxx Xxxxxxxxxxxxx 0, 00000 Xxxxxxxxx xx
Xxxx, Xxxxxxx
(hereinafter "DBAG")
2. SWX Swiss Exchange, Xxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
(hereinafter "SWX", and
together with DBAG the "Licensors")
and
1. Ceres Trading Limited Partnership, c/o Electronic Chicago Board of Trade,
Inc., 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000-X, Xxxxxxx, Xxxxxxxx 00000, Xxxxxx
Xxxxxx of America
(hereinafter "Ceres" or "Licensee")
2. Board of Trade of the City of Chicago, Inc., 000 Xxxx Xxxxxxx Xxxx., Xxxxx
000-X, Xxxxxxx, Xxxxxxxx, 00000, Xxxxxx Xxxxxx of America
(hereinafter "CBOT")
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PREAMBLE
A. Licensors are the exclusive owners of the Eurex Software (as defined
below). CBOT offers certain derivative products for trading on an
electronic market operated on the basis of Release a/c/e 1.0 (as defined
below) of the Eurex Software and known as "a/c/e" (the "CBOT Electronic
Market"). Licensee's right to use Release a/c/e 1.0 was to date subject to
the Software License Agreement among DBAG, SWX, CBOT and Ceres dated
October 1, 1999 (the "Software License Agreement"), the Alliance Agreement
among the Parties and Eurex Deutschland, Eurex Zurich AG, Eurex Frankfurt
AG and Ceres Alliance LLC dated October 1, 1999 (the "Alliance Agreement")
and the Master Software Development Agreement dated July 20, 2000 (the
"Master Software Development Agreement"). The Alliance Agreement and the
Software License Agreement provide for, among other things, Licensee's
right to use release Eurex 2.0 of the Eurex Software, and for the co-
ownership of the Parties with regard to certain modifications to such
release. Deutsche Borse Systems AG ("DBS"), a wholly-owned subsidiary of
DBAG, has so far, under a Systems Operations Agreement dated July 20, 2000
(the "Systems Operations Agreement"), provided the services required by
Licensee and the CBOT for (i) the development and the maintenance of
Release a/c/e 1.0 under the Master Software Development Agreement and (ii)
the implementation, operation and maintenance of the computer and
communication resources required to provide electronic trading services on
the basis of Release a/c/e 1.0.
B. By way of a Reorganization Agreement dated an even date herewith (the
"Reorganization Agreement"), the Parties have decided to terminate the
Alliance Agreement and the Software License Agreement as of the Effective
Date (as defined below) and CBOT and Ceres have, with effect from the
Effective Date, waived and assigned (as more clearly set forth in the
Reorganization Agreement) to Licensors, all right, title and interest, as
existing as of the Effective Date, they acquired with regard to the Eurex
Software under the Software License Agreement, the Alliance Agreement, and
the Master Software Development Agreement. The Reorganization Agreement
also provides for the termination of the Master Software Development
Agreement and the Systems Operations Agreement.
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C. Licensee and CBOT desire to continue to use Release a/c/e 1.0 after the
termination of the Software License Agreement and the Alliance Agreement,
and to replace Release a/c/e 1.0 with a First Subsequent Release (as
defined below) and eventually further Subsequent Releases (as defined
below). Licensors desire, pursuant to the terms of this Agreement, in a
first step, to grant to Licensee the right to use Release a/c/e 1.0 for the
purposes of the trading of certain CBOT derivative products on the CBOT
Electronic Market, and, in a second step, to grant to Licensee the right to
use Subsequent Releases for the same purpose as and when implemented.
D. This Agreement exclusively governs Licensee's right to use Release a/c/e
1.0 as well as any Subsequent Releases and New Modifications (as defined
below). The services required for the maintenance of Release a/c/e 1.0 and
of any Subsequent Release shall be provided by DBAG subject to the terms of
the Software Maintenance Agreement (the "Software Maintenance Agreement")
dated an even date herewith between the Parties, Eurex Zurich AG and Eurex
Frankfurt AG, and the services required for the testing, installation and
deployment of any Subsequent Release shall be provided by DBS subject to
the New Systems Operations Agreement (the "New Systems Operations
Agreement") dated an even date herewith between CBOT, Ceres, DBS, Eurex
Frankfurt AG and Eurex Zurich AG.
In consideration of the foregoing premises and the mutual covenants herein set
forth, the parties agree as follows:
1. Definitions
Unless otherwise specified in the body of this Agreement, each term set forth
below when used anywhere in this Agreement or its Exhibits shall have the
respective meaning ascribed to it below:
1.1 "Additional Eligible Derivatives" shall mean the CBOT derivatives products
identified in Exhibit A, section B, as may be amended in writing from time
to time, other than an Initial Eligible Derivative.
1.2 "Affiliate" shall have the meaning set forth in the Reorganization
Agreement.
Non-exclusive Software License Agreement - Final
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1.3 "CBOT Group" shall have the meaning set forth in the Reorganization
Agreement.
1.4 "Change of Control" shall have the meaning set forth in the Reorganization
Agreement.
1.5 "Documentation" shall mean all user documentation in both human readable
and machine readable form, flow charts and narratives, as well as other
materials used in providing and supporting electronic trading facilities
and services and all other tangible materials which represent, describe or
specify the Licensed Programs and/or the New Modifications or their use,
operations or applications. For the avoidance of doubt, the term
"Documentation" shall include the Program Documentation (as defined in
Section 1.13 of the SLA).
1.6 "Effective Date" shall have the meaning set forth in the Reorganization
Agreement.
1.7 "Eligible Derivatives" shall mean the Initial Eligible Derivatives and the
Additional Eligible Derivatives.
1.8 "Eurex Group" shall have the meaning set forth in the Reorganization
Agreement.
1.9 "Eurex Exchanges" means Eurex Deutschland and Eurex Zurich.
1.10 "Eurex Software" shall have the meaning set forth in the Reorganization
Agreement, and shall, for the avoidance of doubt, include the Licensed
Programs (excluding the Tools) and the New Modifications.
1.11 "First Subsequent Release" shall mean the release of the Eurex Software
described in Exhibit C.
1.12 "First Subsequent Release Date" shall mean the Subsequent Release Date of
the First Subsequent Release.
1.13 "Initial Eligible Derivatives" shall mean the derivative products set
forth in Exhibit A, section A.
1.14 "Licensed Programs" shall mean
(a) until the First Subsequent Release Date the Tools and all those parts
of the Eurex Software, in an object code or other executable format,
but in any
Non-exclusive Software License Agreement - Final
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event excluding the source code, (i) which were actually used as of
the Effective Date by the Licensee for the electronic trading of
Eligible Derivatives on the CBOT Electronic Market and for providing
and supporting the facilities and services required by CBOT users for
such trading, and/or (ii) which were the subject-matter of any New
Modifications agreed to after the Effective Date and are actually used
for the electronic trading of Eligible Derivatives on the CBOT
Electronic Market and for providing and supporting the facilities and
services required by CBOT users for such trading before the First
Subsequent Release Date; and
(b) from any Subsequent Release Date to the following Subsequent Release
Date the Tools and all those parts of the Eurex Software in an object
code or other executable format, but in any event excluding the source
code, (i) which are actually used as of such Subsequent Release Date
by the Licensee for the electronic trading of Eligible Derivatives on
the CBOT Electronic Market and for providing and supporting the
facilities and services required by CBOT users for such trading,
and/or (ii) which are the subject-matter of any New Modifications
agreed to after this Subsequent Release Date and actually used by
Licensee for the electronic trading of Eligible Derivatives on the
CBOT Electronic Market and for providing and supporting the facilities
and services required by CBOT users for such trading before the
following Subsequent Release Date.
The term "Licensed Programs" shall not include any clearing
functionalities, but shall include the "distributed matching algorithm",
provided that (i) the "distributed matching algorithm" is thoroughly
tested, at Licensee's cost and expense, (ii) all actions and cost necessary
for taking the distributed matching algorithm into production shall be
subject to a change request under the New Systems Operations Agreement, and
(iii) no service levels agreed to under the New Systems Operations
Agreement shall apply with regard to services involving the "distributed
matching algorithm".
1.15 "Licensors Confidential Information" shall have the meaning as defined in
Section 7.2 below.
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1.16 "New Modifications" shall mean all of the alterations, adaptions,
amendments, modifications, enhancements, extensions, developments and
improvements, or other work results related, to the Licensed Programs made
under the Master Software Development Agreement (to the extent not already
included in the Licensed Programs) or, subsequently, the Software
Maintenance Agreement.
1.17 "Proprietary Rights" means, with respect to any item, all trade secret,
copyright, patent, trademark, service xxxx, certification xxxx, trade dress
or other intellectual property or proprietary rights in all countries
related to such item or any part thereof, any extensions and renewals of
the foregoing, and any registrations, patents or applications with respect
to the foregoing, including any Licensors Confidential Information included
therein or related thereto.
1.18 "Release a/c/e 1.0" shall mean those parts of the Eurex Software that have
been put into production for purposes of the CBOT Electronic Market on or
before the Effective Date.
1.19 "Subsequent Release" shall mean the First Subsequent Release and any
further release intended for the operation of the CBOT Electronic Market.
1.20 "Subsequent Release Date" shall mean the date on which a Subsequent Release
has been put into production for the electronic trading of Eligible
Derivatives on the CBOT Electronic Market and for providing and supporting
the facilities and services required by CBOT users for such trading before
the following Subsequent Release Date.
1.21 "System" shall have the meaning set forth in the Reorganization Agreement.
1.22 "Termination Date" shall have the meaning as defined in Section 3.
1.23 "Tools" shall mean various tools and methodology created by DBS (as
presently used, subsequently modified or newly created by DBS) as are
necessary for Licensee and CBOT to receive the services provided under the
New Systems Operations Agreement.
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2. Grant of License
2.1 Subject to the terms and conditions of this Agreement, Licensors hereby
grant to Licensee throughout the period from the Effective Date to the
Termination Date a non-exclusive, non-transferable license, sublicensable
only as provided in this Section 2 and royalty-bearing as provided in
Section 6, to use the Licensed Programs in object code form only to provide
and support electronic trading facilities and services for the trading of
Eligible Derivatives on the CBOT Electronic Market. Licensee may use the
Licensed Programs for such purposes only on the equipment and
infrastructure made available to it by DBS under the New Systems Operations
Agreement. Licensee may provide to CBOT users those components of the
Licensed Programs as are necessary for such users to participate in the
electronic trading of Eligible Derivatives on the CBOT Electronic Market.
Licensee shall have no right to decompile, reverse engineer, disassemble,
rent, lease, distribute or modify the Licensed Programs and make derivative
works thereof and/or to merge the same into other programs and materials.
Licensee shall have no other rights with respect to the Licensed Programs
other than as provided in this Agreement.
2.2 Licensee may sublicense the Licensed Programs subject to Licensors' prior
written consent. No such consent shall be required for any sublicense
granted to CBOT to provide and support electronic trading facilities and
services for CBOT users for the trading of Eligible Derivatives on the CBOT
Electronic Market if and to the extent that any such sublicense contains
terms for the benefit of the Licensors which are comparable to the
restrictions contained herein with respect to (i) protecting the
confidentiality and proprietary nature of the Licensed Programs, the
Licensors' Confidential Information and Licensors' Proprietary Rights with
respect thereto, (ii) limitations on use, (iii) disclaimers of warranties,
(iv) limitations on liability and (v) limitations on transfer, assignment
and sublicensing.
3. Term of License
This Agreement shall be effective as of the Effective Date and shall
continue through December 31, 2003 or any earlier date in the event this
Agreement is terminated as of such earlier date pursuant to Section 8.1 or
8.2 (the "Termination Date").
Non-exclusive Software License Agreement - Final
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4. Delivery
4.1 Licensee and CBOT acknowledge (i) that the Licensed Programs referred to in
Section 1.13 (a) have been delivered to them and accepted under the Master
Software Development Agreement, and (ii) that the Documentation relating to
such Licensed Programs referred to in Section 1.13(a) has been delivered to
them.
4.2 The First Subsequent Release shall be delivered to Ceres for acceptance on
or before December 31, 2002. With regard to the acceptance of the First
Subsequent Release, the provisions of Section 9.4 of the Software
Maintenance Agreement shall apply accordingly. The steps necessary to take
the First Subsequent Release into production, and the cost thereof, shall
be subject to a Change Request (as defined in the New Systems Operations
Agreement) under the New Systems Operations Agreement.
4.3 The delivery of any Subsequent Release other than the First Subsequent
Release shall take place on the date and with specifications to be mutually
agreed by the Parties. Licensee shall be responsible for the installation
of any Subsequent Release and shall in this context use the services
offered by DBS under the New Systems Operations Agreement. The delivery and
installation of any New Modifications after the Effective Date shall be
agreed under the Software Maintenance Agreement.
5. Warranties, Disclaimer of Warranties
5.1 Licensors warrant that:
5.1.1 Except for the third party software identified in Exhibit B hereto
which Licensors warrant is available from third party vendors, the
Licensed Programs include all of the software used on the Effective
Date by CBOT and Ceres in providing and supporting the CBOT
Electronic Market electronic trading facilities and services for the
users of CBOT.
5.1.2 To Licensors' knowledge as of the date hereof, (i) Licensors, taken
together, and their respective licensors are the lawful owners of
all intellectual property rights in the Licensed Programs with full
rights to grant the license granted herein, and (ii) as delivered to
Licensee, the Licensed Programs do not infringe the intellectual
property rights of any third party and are not subject to
Non-exclusive Software License Agreement - Final
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any claim of infringement by any third party, provided that
Licensors are aware of the claims under U.S. Patent No. 4,903,201
(the "Patent") asserted in the case captioned eSpeed, Inc. and
Electronic Trading Systems Corporation v. Board of Trade, et al.,
Civil Action No. 3-99CV1016-M, pending in the United Stated District
Court for the Northern District of Texas (the "Texas Case"). None of
the parties to this Agreement have any reason to believe that, when
used in the manner contemplated in this Agreement, the System does
or will infringe any valid patent rights of the plaintiff in the
Texas Case. Notwithstanding any other provisions of this Agreement,
no Party shall have any liability (including, without limitation,
under Section 5.2) to another Party under this Agreement arising out
of or in connection with the Patent or any claims asserted with
respect thereto, in the Texas Case or otherwise, based upon the
Patent.
5.1.3 To Licensors' knowledge as of the date hereof, the Licensed Programs
do not contain any timer, clock, counter or other limiting design or
routine which causes the Licensed Programs to become erased,
inoperable or otherwise incapable of being used in the full manner
for which they are designed and licensed pursuant to this Agreement
after being used or copied a certain number of times, or after the
lapse of a certain period of time, after the occurrence or lapse of
any similar triggering factor or event, or because they have been
installed on or moved to a central processing unit or system which
has a different serial number, model number or other identification
different from the system on which they were originally installed.
5.1.4 Neither of Licensors is a party to any agreement that impairs its
rights to grant the license herein or perform its obligations
hereunder.
5.2 Licensee's sole remedies with respect to breaches by Licensors of their
warranties under Section 5.1 shall be the commercially reasonable efforts
of the Licensors to correct such breaches or cause such breaches to be
corrected.
5.3 Licensee recognizes that, in licensing the Licensed Programs from
Licensors, it is relying upon its own investigation of the Licensed
Programs and its judgments on the suitability of the Licensed Programs for
its purposes and acknowledges that Licensors
Non-exclusive Software License Agreement - Final
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can and do not make any representation or warranties that the Licensed
Programs do or will (i) meet the requirements of Licensee or operate in
configurations selected by Licensee, (ii) operate in the environment of
Licensee in an uninterrupted or error-free manner, or (iii) conform to any
performance specifications.
5.4 With regard to the First Subsequent Release, the provisions set forth in
Sections 11.2, 12.3 and 14.1 of the Software Maintenance Agreement shall
apply instead of Sections 5.2, 5.3 and 5.7 of this Agreement. For the
avoidance of doubt, the preceding sentence does not apply with regard to
the "distributed matching algorithm" which is not part of the First
Subsequent Release.
5.5 Except as set forth in Section 5.1, the Licensed Programs are being
provided to Licensee as is, and Licensors do not make, and hereby disclaim,
any and all other warranties, express, implied, statutory or otherwise,
including, but not limited to, implied warranties of title, non-
infringement, merchantability and fitness for a particular purpose, and
shall have no liability in connection with or arising out of any failure of
the Licensed Programs (i) to meet Licensee's requirements or operate in
configurations selected by Licensee, (ii) to operate in Licensee's
environment in an uninterrupted or error-free manner or (iii) to conform to
any performance specifications, or in connection with or arising out of any
ability or inability to use the Licensed Programs in connection with any of
the financial products or contracts traded (or failed to be traded) on any
exchange or by any members thereof. Notwithstanding the fact that Licensee
is not entitled to make any modifications to the Licensed Programs,
Licensors shall have no liability of any kind under this Agreement for any
modifications made to the Licensed Programs by Licensee or any permitted
sublicensee of any party acting on behalf of any of them.
5.6 Each of the Parties hereby represents and warrants to the others as
follows:
5.6.1 It has all requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated
hereby.
5.6.2 The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on its part.
Non-exclusive Software License Agreement - Final
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5.6.3 This Agreement is a legal, valid and binding obligation of it, and
enforceable against it in accordance with the terms hereof.
5.7 In no event shall Licensors be liable for, and Licensee hereby waives and
releases any claims it might otherwise have to be compensated by Licensors
in connection with this Agreement for, any special, indirect, consequential
or collateral damages (such as, without limitation, loss of revenue, loss
of profits, loss of data, loss of use, interruption of business or loss of
goodwill), or any damages other than direct damages, without regard to the
circumstances giving rise to any purported claim and regardless of the
legal or equitable grounds on which any purported claim is based, arising
from the granting of the license granted herein or the dependence upon or
use of the Licensed Program by Licensee or any third party.
5.8 Licensee agrees to indemnify, defend and hold Licensors harmless against
any and all damages, costs or expenses (including reasonable attorney's
fees) relating to, based on or arising out of all claims brought by users
of the CBOT Electronic Market arising out of the Licensee's use or
disclosure of the Licensed Programs, or any such use or disclosure by any
third party to which Licensee has made available any portion of the
Licensed Programs, other than with respect to that portion of any such
damages, costs or expenses resulting directly from any breach by Licensors
of their warranties set forth in Section 5.1, or, with regard to the First
Subsequent Release, the provisions referenced in Section 5.4.
6. License Fees
6.1 In consideration for the license granted under Section 2.1, Licensee shall
pay to Licensors
(a) an annual license fee of Euro [**]((Euro) [**]) (pro rata temporis for
2002) (the "Annual Fee") and
(b) a variable fee (the "Variable Fee") (i) to be calculated with regard
to the Initial Eligible Derivatives on the basis of [**], and (ii)
consisting in case of the Additional Eligible Derivatives of [**].
Non-exclusive Software License Agreement - Final
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6.2 The Annual Fee shall be paid in installments of Euro [**] ((Euro) [**]) in
advance on the first day of each [**]. The payment of the Annual Fee shall
start as of [**]. The installment for the [**] of 2002 shall be due and
payable within [**] of the Effective Date. In the event the Termination
Date does not coincide with the [**] of a [**], the installment paid with
regard to the [**] in which the Termination Date falls, shall be adjusted
pro rata temporis from the first day of such [**] until, and including, the
Termination Date; the Licensors shall in such case refund to Licensee any
payments already made in excess of such adjusted installment.
6.3 The Variable Fees shall be calculated each [**]. The payment of the
Variable Fees shall start as of [**]. All Variable Fees accrued in a [**]
shall be paid within ten (10) business days of the end of such [**]. Each
payment of Variable Fees shall be accompanied by a report listing all [**]
in sufficient detail to permit confirmation of the accuracy of the Variable
Fee payment made, including, without limitation, the [**] basis. Licensee
shall keep complete and accurate records pertaining to the information
required to calculate the Variable Fee in sufficient detail to permit
Licensors to confirm the accuracy of all payments due hereunder. Licensors
shall have the right to have an independent, certified public accountant
audit such records to confirm the amount of Variable Fees. Such audit may
be exercised during normal business hours upon reasonable prior written
notice to Licensee. Prompt adjustment shall be made by the Parties with
regard to affected payments to reflect the results of such audit. Licensors
shall bear the full cost of such audit unless such audit discloses a
variance of more than five percent (5%) between the amount of Variable Fees
or other payments due under this Agreement for a particular [**] and the
amount actually received by Licensors for such [**]. In such case, Licensee
shall bear the full cost of such audit and shall, in addition, promptly
remit to Licensors the amount of any underpayment.
6.4 In the event this Agreement ends or is terminated, Licensee shall pay on
the Termination Date to Licensors an amount equal to Euro [**] plus [**] of
the aggregate of all Variable Fees due by Licensee for the three months
preceding the Termination Date. The preceding sentence shall not apply in
the event Section 6.2.3, last sentence, of the Reorganization Agreement
applies.
Non-exclusive Software License Agreement - Final
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6.5 Licensors shall pay any and all taxes levied on account of license fees and
other payments under this Agreement. If any taxes are required to be
withheld by Licensee, Licensee will (i) deduct such taxes from the
remitting payment, (ii) timely pay the taxes to the proper taxing
authority, (iii) send proof of payment to Licensor and certify its receipt
by the taxing authority within thirty (30) days following such payment, and
(iv) provide all necessary support to Licensors as required to recover such
taxes.
6.6 Each of Licensors, or one Licensor on behalf of both Licensors, will send
to Licensee invoices regarding its share, as such share is agreed between
Licensors, in the license fees set forth in Section 6.1.
6.7 Legal rights of either Party to set-off against claims of the other Party
are excluded, except where the corresponding claim of such Party has either
been determined by a final arbitral award pursuant to Section 9.3 or
expressly acknowledged by the affected other Party or Parties, as the case
may be, in writing. In no event shall Licensee be entitled to set-off
against the invoice of a Licensor where Licensee's corresponding claim is
directed against the other Licensor.
7. Ownership, Confidentiality
7.1 Licensors and their licensors are the sole and exclusive owners of, and
have the sole and exclusive title in and to, the Eurex Software and the
Documentation, all Proprietary Rights relating to the Eurex Software and
the Documentation, and any causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing. However,
Licensors agree to (i) assert and prosecute such claims at their own
expense, or (ii) to assign them to Licensee or CBOT when reasonably
necessary to protect the rights of Licensee or CBOT hereunder, in which
case Licensee or CBOT may prosecute such claims, but at their own expense.
7.2 The receiving party of any Confidential Information (as defined below)
agrees to use reasonable efforts to protect such Confidential Information
from unauthorized use or disclosure (intentional, inadvertent or otherwise)
and in any event shall take such steps to protect the proprietary interest
therein of the disclosing party as it takes to protect the confidentiality
and ownership of its own information and materials of a
Non-exclusive Software License Agreement - Final
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like nature. Notwithstanding the foregoing, the receiving party's
obligation to protect the confidentiality of any Confidential Information
shall terminate if the same becomes part of the public domain without
breach by the receiving party of its obligations hereunder. Further, the
foregoing obligations shall not apply to information that is disclosed to
the receiving party without obligation of confidentiality by a third party
with the right to do so. For the purposes of this Agreement, "Confidential
Information" means confidential information the receiving party, or any of
its related parties or their respective directors, officers, employees or
agents, receives in connection with the transactions contemplated herein
relating to the software, products, business and financial plans and
information and trade secrets and other information relating to the
business of the disclosing party and/or its related parties (including, in
the case of either Licensor, the Eurex Exchanges) and their respective
related parties, and information subject to an obligation of confidence to
a third party, and "Licensors Confidential Information" means Confidential
Information with respect to which either Licensor is a disclosing party.
8. Termination
8.1 Either Party (whereby for the purposes hereof CBOT and Licensee, on the one
hand, and DBAG and SWX, on the other hand, shall be regarded as one party)
may terminate this Agreement prior to December 31, 2003 only upon the
occurrence of any of the following:
(a) Upon termination of any of the Software Maintenance Agreement or the
New Systems Operations Agreement, provided that, for the avoidance of
doubt, this Agreement is deemed to be terminated pursuant to Section
8.2 or Section 8.3, as the case may be, of this Agreement in the event
that either of the Software Maintenance Agreement or the New Systems
Operations Agreement is terminated under its respective Section 17.2.3
or 17.2.4;
(b) upon or after the bankruptcy, insolvency, dissolution or winding up of
the other Party; or
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(c) upon or after the breach of any material provision of this Agreement
by the other Party if the breaching party has not cured such breach or
the Parties have not agreed on a plan to remedy such breach within
fifteen (15) business days after written notice thereof by the non-
breaching party; or
8.2 Licensors may terminate this Agreement prior to December 31, 2003 upon the
public announcement of, or the filing of a notice with the SEC relating to,
a Change of Control of any member of the CBOT Group other than C-B-T
Corporation and its legal successors and assigns (to the extent it remains
in its present lines of business), provided that (i) all Annual Fees and
the estimated Variable Fees that would have to be paid by Licensee (to be
calculated on the basis of the average payment of Variable Fees until
declaration of termination) throughout the entire regular term of the
Agreement (i.e. through December 31, 2003) are immediately due and payable,
and (ii) Licensors will ensure termination assistance for a period no
longer than two months from the declaration of termination by Licensors,
and (iii) in the event a public announcement or SEC filing takes place
after December 31, 2002, only the closing of the so announced or notified
transaction shall trigger the termination right and termination assistance
shall in such case be made available for a period of four months from the
declaration of termination, but in no event beyond December 31, 2003.
Termination assistance shall mean that Licensee shall have the right to
continue to use the Licensed Programs, and the obligation to pay for such
use, each as set forth in this Agreement, through the end of the
termination assistance. To the extent required by a corresponding written
notice of Licensee, Licensors must decide within 30 days of receipt of such
notice whether or not to exercise the right to terminate pursuant to this
section.
8.3 Licensors may terminate this Agreement prior to December 31, 2003 upon the
public announcement of, or the filing of a notice with the SEC relating to,
the introduction of a system succeeding the System after the end of the
Follow-up Agreements (as defined in the Reorganization Agreement), provided
that (i) all Annual Fees and the estimated Variable Fees that would have to
be paid by Licensee (to be calculated on the basis of the average payment
of Variable Fees until declaration of termination) throughout the entire
regular term of the Agreement (i.e. through December 31, 2003) are
immediately due and payable, and (ii) Licensors will ensure termination
assistance
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(as described in Section 8.2) for a period no longer than two months from
the declaration of termination by Licensors and (iii) this Section 8.3
applies only in the event such public announcement or SEC filing takes
place before December 31, 2002 and if another exchange or contract market,
or any of its respective Affiliates, is directly or indirectly involved in
providing the succeeding system or services related thereto. This Section
8.3 does not apply with regard to the introduction of any system which
solely relates to open outcry trading, clearing or market surveillance. To
the extent required by a corresponding written notice of Licensee,
Licensors must decide within 30 days of receipt of such notice whether or
not to exercise the right to terminate pursuant to this section.
8.4 For the avoidance of doubt, no Party shall be entitled to terminate this
Agreement for convenience prior to the end of the term set forth in Section
3.
8.5 On the Termination Date, and to the extent not required to receive
termination assistance pursuant to Section 8.2 or 8.3, the license, all
sublicenses and all rights pursuant to this Agreement to use the Licensed
Programs, the New Modifications, the Documentation and any Licensors
Confidential Information shall immediately terminate. Licensee shall, and
shall ensure that all sublicensees and any other parties to which it has
provided any portion of the Licensed Programs, the Documentation or the New
Modifications or Licensors' Confidential Information shall, promptly return
or destroy all copies of the Licensed Programs, New Modifications,
Documentation or Licensors' Confidential Information (including derivative
works based thereupon) in all forms, partial and complete, whether or not
modified or merged into other programs, other than and for so long as
required for archival purposes pursuant to applicable regulatory
requirements. Licensee shall then promptly deliver to Licensors a written
statement certifying its compliance with this requirement. For each
business day which is a business day in Chicago following the Termination
Date on which Licensee is not in compliance with the provisions contained
in this Section 8.5 (except for termination assistance pursuant to Section
8.2 or 8.3), Licensee shall pay an amount of (Euro) [**] to Licensor.
8.6 Notwithstanding anything to the contrary contained elsewhere in this
Agreement, the following sections of this Agreement shall survive any
termination hereof: Sections
Non-exclusive Software License Agreement - Final
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5.1.2, 5.2, 5.3, 5.4, 5.6, 5.7, 5.8, 6, 7, 8 and 9. Section 9.6 (only last
sentence) and 9.7 shall survive the liquidation, dissolution, bankruptcy or
reorganization of Ceres.
9. General Provisions
9.1 All notices given under this Agreement shall become effective only when
actually received at the following addresses:
CBOT/Ceres: Board of Trade of the City of Chicago, Inc./Ceres
Trading L.P.
000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
United States of America
Attention: Xx. Xxxxx X. Xxxxx
Telephone: x0-000-000-0000
Facsimile: x0-000-000-0000
DBAG: Deutsche Borse AG
Xxxx Xxxxxxxxxxxxx 0
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx Xxxxxxxx of Germany
Attention: Xx. Xxxxx Xxxx
Telephone: x00-00-0000-0000
Facsimile: x00-00-0000-0000
SWX: SWX Swiss Exchange
Xxxxxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
Attention: Ms. Petra Bysaeth
Telephone: x00-0-000-0000
Facsimile: x00-0-000-0000
Any Party may change its address for the purpose of notices by giving
notice thereof to each Party in accordance with the provisions of this
Section 9.1.
9.2 This Agreement shall be governed by and subject to the substantive laws of
the Federal Republic of Germany, to the exclusion of its conflicts of law
rules; the United Nations Conventions on the International Sale of Goods
shall not apply.
Non-exclusive Software License Agreement - Final
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9.3 Except with regard to actions seeking temporary or permanent injunctive
relief, any dispute arising under or in connection with this Agreement
between or among any parties to this Agreement will be finally settled by
arbitration in accordance with the arbitration rules of the United Nations
Convention on International Trade Law (the "UNCITRAL Rules").
9.3.1 The arbitration will be conducted by three (3) arbitrators. Such
arbitrators are to be appointed in accordance with Article 7 of the
UNCITRAL Rules.
9.3.2 Where there are multiple parties, whether as Claimant or as
Respondent the multiple Claimants, jointly, and the multiple
Respondents, jointly, shall nominate an arbitrator pursuant to
Article 7 of the UNCITRAL Rules. In the absence of such a joint
nomination and where all parties are unable to agree to a method for
the constitution of the Arbitral Tribunal, the London Court of
International Arbitration (the "Appointing Authority" for the
purposes of the application of the UNCITRAL Rules) may appoint each
member of the Arbitral Tribunal and shall designate one of them to
act as chairman. In such case the Appointing Authority shall be at
liberty to choose any person it regards as suitable to act as
arbitrator.
9.3.3 The place of arbitration shall be London. The proceedings shall be
conducted in the English language exclusively.
9.3.4 The Parties acknowledge that irreparable damage may occur in the
event of breach of any of the terms of this Agreement.
9.4 The provisions of this Agreement are severable and the unenforceability of
any provision of this Agreement shall not affect the enforceability of any
other provisions hereof. In addition, in the event that any provision of
this Agreement (or portion thereof) is determined by a court of competent
jurisdiction, an arbitral award obtained pursuant to Section 9.3 or any
regulatory authority having jurisdiction to be unenforceable as drafted by
virtue of the scope, duration, extent or character of any obligation
contained therein, it is the mutual agreement of the Parties that such
provision (or portion thereof) shall be construed in a manner designed to
effectuate the purpose of such provision to the maximum extent enforceable
under applicable law. If such construction is not possible, the Parties
undertake, to the extent
Non-exclusive Software License Agreement - Final
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reasonably possible, to modify such provision in order to implement the
purposes of such provision as fully as possible.
9.5 While there are related agreements to which some or all of the parties
hereto are parties (the Reorganization Agreement, the Software Maintenance
Agreement, the New Systems Operations Agreement and the surviving
provisions of the Preexisting Agreements (as defined in the Reorganization
Agreement)), this Agreement constitutes the complete agreement of the
parties with respect to the matters set forth herein, and there are no
written or oral side agreements to this Agreement. This Agreement and the
Exhibits attached hereto may only be modified by a written instrument
signed by all Parties hereto. This Section 9.5 may also be modified only by
a written instrument signed by all Parties hereto. This provision shall not
be deemed to affect any rights any Party may have against any third party.
9.6 This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns. No Party may
assign this Agreement or any portion hereof, by Change of Control,
operation of law or otherwise, without obtaining the prior written consent
of the other Parties. The Parties will grant their consent to the
assignment of rights or obligations by a party to an Affiliate of such
Party if (i) the assigning Party remains liable for any assigned
obligations as a jointly and severally liable guarantor
(selbstschuldnerische Burgschaft) with the assignee, (ii) the assigning
Party, together with its rights and obligations under this Agreement,
assigns its rights and obligations, if any, under the Reorganization
Agreement, the Software Maintenance Agreement and the New Systems
Operations Agreement to the assignee, or (iii) in case of Ceres being the
assigning Party, CBOT assumes a performance guarantee as set forth in
Section 9.7 with regard to the assignee. The exceptions to the definition
of "Change of Control" for CBOT and SWX do not require the consent of the
other Parties under this Section 9.6. For the avoidance of any doubt, the
above shall not entitle a Party to invoke a preliminary injunction or to
seek any other remedy in order to prevent the occurrence of a Change of
Control.
9.7 (a) CBOT hereby unconditionally and irrevocably guarantees to Licensors
the full and timely performance by Ceres and any of its permitted
assigns or legal successors (individually and collectively referred to
as "Ceres") of all of Ceres' obligations (the "Performance
Obligations") under or pursuant to this
Non-exclusive Software License Agreement - Final
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Agreement, including, without limitation, the indemnity obligations
hereunder, as and when the same shall be due to be performed under
this Agreement, and all liabilities of Ceres under this Agreement in
the event of any breach by Ceres of any term hereof. CBOT hereby
waives any provision of any statute, regulation or judicial decision
otherwise applicable hereto which restricts or in any way limits the
rights of an obligee against a guarantor or surety following a default
or failure of performance by an obligator with respect to whose
obligations the guarantee or surety is provided.
(b) Licensors may proceed to protect and enforce any or all of their
rights under this Section 9.7 pursuant to Section 9.3, whether for the
specific performance of any covenants or agreements of Ceres under or
pursuant to this Agreement, and shall be entitled to require and
enforce the performance by CBOT of all acts and things required to be
performed hereunder by Ceres.
(c) CBOT shall not be entitled to and does hereby waive any and all
defenses now or hereafter available to guarantors, sureties and other
secondary parties at law or in equity, with the exception of any
defenses Ceres may have against Licensors that are available to CBOT.
(d) Licensors shall be entitled to proceed on first demand directly
against CBOT in respect of any Performance Obligation hereunder
without any requirement that it first make any demand against or
exhaust any remedies available to it from Ceres or to take any other
steps.
9.8 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which, taken together, shall constitute one
and the same instrument.
Deutsche Borse AG Board of Trade of the City of Chicago, Inc.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------- --------------------------------------
Date: 07/11/02 By: 07/10/02
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SWX Swiss Exchange Ceres Trading Limited Partnership,
by Electronic Chicago Board of Trade,
Inc., its managing general partner
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------- --------------------------------
Date: 07/11/02 Date: 07/10/02
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Exhibit A
Eligible Derivatives
A. Initial Eligible Derivatives
1. Corn Futures
2. Options on Corn Futures
3. Oat Futures
4. Options on Oat Futures
5. Rough Rice Futures
6. Options on Rough Rice Futures
7. Soybean Futures
8. Options on Soybean Futures
9. Soybean Oil Futures
10. Options on Soybeans Oil Futures
11. Soybean Meal Futures
12. Options on Soybean Meal Futures
13. Wheat Futures
14. Options on Wheat Futures
15. Kilo Gold Futures
16. Silver 1000 Ounce Futures
17. Silver 1000 Ounce Options
18. CBOT(R) Dow Xxxxx(SM) Industrial Average Futures ($10 Multiplier)
19. Options on CBOT(R) Dow Xxxxx(SM) Industrial Average Futures ($10
Multiplier)
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Exhibit A
20. CBOT(R) Dow Xxxxx(SM) Composite Average Futures
21. CBOT(R) Dow Xxxxx(SM) Transportation Average Futures
22. CBOT(R) Dow Xxxxx(SM) Utility Average Futures
23. United States Treasury Bond Futures
24. United States Treasury Bond Futures Reduced Tick Spread
25. Options on United States Treasury Bond Futures
26. 10- Year United States Treasury Note Futures
27. 10- Year United States Treasury Note Futures Reduced Tick Spread
28. Options on 10- Year United States Treasury Note Futures
29. 5- Year United States Treasury Note Futures
30. 5- Year United States Treasury Note Futures Reduced Tick Spread
31. Options on 5- Year United States Treasury Note Futures
32. 2- Year United States Treasury Note Futures
33. Options on 2- Year United States Treasury Note Futures
34. 10- Year Agency Note Futures
35. 10- Year Agency Note Futures Reduced Tick Spread
36. Options on 10- Year Agency Note Futures
37. 5- Year Agency Note Futures
38. 5- Year Agency Note Futures Reduced Tick Spread
39. Options on 5- Year Agency Note Futures
40. 30- Day Fed Funds Futures
41. Long-Term Municipal Bond Index Futures
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Exhibit A
42. Options on Long-Term Municipal Bond Index Futures
43. Mini United States Treasury Bond Futures
44. Mini 10- Year United States Treasury Note Futures
45. Mini CBOT(R) Dow Xxxxx(SM) Industrial Average Futures ($2 multiplier)
46. Mini CBOT(R) Dow Xxxxx(SM) Industrial Average Futures ($5 multiplier)
47. Mini New York Gold Futures
48. Mini New York Silver Futures
B. Additional Eligible Derivatives
1. 10-Year Interest Rate Swap Futures
2. Mini Eurodollar Futures
3. DJ - AIGCI(SM) Futures
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Exhibit B
Third Party Software
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Exhibit C
First Subsequent Release
Non-exclusive Software License Agreement - Final
NON-EXCLUSIVE SOFTWARE LICENSE AGREEMENT
EXHIBIT C
Eurex(R)
Change Request
a/c/e 1.1
CR000-2002 Implementation of a/c/e 1.1 Basic Release
- Confidential -
Documentation ID CR000-2002 Implementation of ace 1.1 basic release v1.doc
Version 1.0
Status Final
Printed 7-May-02 12:11
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History
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Date By Reason
--------------------------------------------------------------------------------
2002-03-13 Xxxxxxx Xxxxxxxx First Draft
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2002-05-06 Xxxxxxx Xxxxxxxx Split basic release and new functionality
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2002-05-07 Xxxxx Xxxxxxx Finalized
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Table of Contents
1 Management Summary 4
1.1 Abstract 4
1.2 Impact Overview 4
1.3 Status Overview 5
2 Description of Change 6
2.1 Current Situation 6
2.2 Recommended Change 6
2.3 Services Provided by Deutsche Borse Systems 6
2.4 Out of Scope 7
2.5 Assumptions 7
2.6 Cooperation Duties of Eurex and a/c/e 8
2.7 Acceptance 9
3 Estimation of Effort and Costs 10
4 Proposed Time-line and Schedule 11
5 Decision 12
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1 Management Summary
1.1 Absract
Eurex has asked Deutsche Borse Systems to submit a proposal covering the
introduction of a/c/e Release 1.1 on the a/c/e hosts and front-ends in early
2003. a/c/e Release 1.1 comprises the Eurex Release 4.1-1 software plus
additional functional amendments as listed in Section 2.3.
In order to respond to this request from Eurex, Deutsche Borse Systems proposed
to render services as defined in section 2.3 on a time and materials basis.
Warranty effort is not included.
This proposal needs to be signed until [**] to achieve a hand-over to
acceptance on [**] . The release introduction date is to be determined by
Eurex, a/c/e and DBS.
1.2 Impact Overview
------------------------------------------------------------------------------
Impact Comment
------------------------------------------------------------------------------
Classification [_] simple modification (Type A)/1/
[X] complex modification (Type B)
------------------------------------------------------------------------------
Release [X] Front End Release
[X] Host Release
[_] Express Release
------------------------------------------------------------------------------
Estimated Costs (Euro) x on a time and material basis
------------------------------------------------------------------------------
Schedule Preparation of a development [**]
environment; Build, Reconciliation,
and Regression Test incl. Compatibility
Test
Fuctional Acceptance Test Not before [**]
Acceptance To be defined
Simulation To be defined
Production Launch To be defined
------------------------------------------------------------------------------
Scope This change request covers DBS's a/c/e Release 1.1
related effort (See chapter 2.3).
------------------------------------------------------------------------------
/1/ Type A: costs below [**]
Type B: costs over [**]
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1.3 Status Overview
------------------------------------------------------------------------------
Action Date Responsible Comment
------------------------------------------------------------------------------
Identify change request
------------------------------------------------------------------------------
Responsibility client (requestor/owner)
------------------------------------------------------------------------------
Responsibility DBS (Project/Release
Manager
------------------------------------------------------------------------------
Analysis performed
------------------------------------------------------------------------------
Analysis approved (Architect's Office)
------------------------------------------------------------------------------
CR delivered to Controlling
------------------------------------------------------------------------------
Controlling approved
------------------------------------------------------------------------------
Decision taken
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2 Description of Change
2.1 Current Situation
Currently, a/c/e is running Eurex 4.0 software; the Eurex 4.1-1 software has not
been introduced on the a/c/e hosts and front-ends.
2.2 Recommended Change
Deutsche Borse Systems recommends to introduce a/c/e Release 1.1 on the a/c/e
hosts and front-ends in 2003. a/c/e Release 1.1 comprises the Eurex Release
4.1-1 software as described in the assumptions in section 2.5 plus additional
functional amendments as listed in section 2.3.
2.3 Services Provided by Deutsche Borse Systems
This change request covers the following a/c/e Release 1.1 related efforts and
services as provided by Deutsche Borse Systems:
1. Reconciliation of all Eurex 4.1-1 SIRs delivered into Eurex production until
[**]
2. Reconciliation of all a/c/e 1.0 SIRs delivered into a/c/e production until
[**]
3. Build, Regression Test, and Front-End compatibility Test with Eurex Release
6.0. No end-to-end tests to BOTCC, PRICES, and OIA are included; DBS
recommends that Eurex performs tests for these interfaces during a/c/e 1.1
simulation.
4. Build and Test of Conversion a/c/e 1.0 to Eurex 4.1-1
5. Hotfire Adaptations to ensure compatibility of Hotfire as of release a/c/e
1.0 with a/c/e 1.1 software
6. Removal of Galaxy code from the XXXX
7. Java Trading GUI on basis of Eurex 6.0 technology
8. Windows 2000 compatibility testing and required software modifications.
9. Roll-out activities of Operational Readiness, Customer Technical Service
and Xetra/Eurex Operations teams;
? Build, Test and Distribution of one a/c/e 1.1 Simulation Kit per
platform (Windows 2000 and Sun Solaris 2.8)
10. Simulation Databases Conversion
11. Update of the External Documentation
12. Program Management and Program Office activities
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2.4 Out of Scope
The following services are not included in this proposal. A separate change
request should Eurex wish that Deutsche Borse Systems provides these services.
1. Due to unknown timelines for acceptance and simulation, this offer does
not include efforts for support of these project phases. This support will
be estimated after finalisation of the rollout plan by Eurex and charged
respectively.
2. Planning and execution of Simulation are not within the scope of this
change request. Efforts of DBS as proposed by this change request end with
the delivery of software into acceptance.
3. Planning, support, and execution of all rollout activities of software to
front-end and back-end systems during production launch other than those
defined in section 2.3 are not part of this change request.
4. There will be no explicit End-to-end Tests to BOTCC, PRICES and OIA. These
interfaces will have to be tested by Eurex and a/c/e during the a/c/e
Release 1.1 simulation phase.
5. No warranty activities are covered by this change request.
6. Changes to systems not maintained by DBS are not included in this change
request.
7. Windows NT will not be supported any longer. Windows XP is not within the
scope of this proposal.
8. The following functions are explicitly excluded from this proposal.
a) Single Stock Futures
b) Additional Order Validations
c) Volatility Interrupt
d) FDD via IP
e) Trade Reversal
f) Volatility Trading
g) Basis Trading
2.5 Assumptions
This proposal is based on the following assumptions:
1. This change request will be signed latest on [**] to achieve the
software delivery for acceptance on [**] .
2. a/c/e Release 1.1 is a mandatory release.
3. a/c/e Release 1.1 implementation effort and Release Acceptance are based
on:
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? Eurex Release 4.1 Fine Specifications
? all Eurex Release 4.1 and 4.1-1 accepted & delivered change request
as of [**]
? all Eurex Release 4.1 and 4.1-1 SIRs fixed in production as of [**]
? Eurex Fine Specifications for
? Removal of Galaxy code from the XXXX
? Java Trading GUI
Note that the Fine Specifications for the requirements "Removal
of Galaxy code from the XXXX" and "Java Trading GUI" are not
existent for a/c/e Release 1.1 and the estimates will have to be
reviewed after the completion of these Fine specifications.
? all a/c/e Release 1.0 accepted & delivered change requests as of
[**]
? all a/c/e Release 1.0 SIRs fixed in production as of [**]
A CD-ROM containing the above documents will be delivered to Eurex.
4. The a/c/e Release 1.1 software is based on
? Eurex Release 4.1-1 software as of production date [**]
? a/c/e Release 1.0 software and all delivered and accepted change
requests as of [**]
? all SIRs implemented in a/c/e 1.0 production until [**]
? Java GUI based on Eurex 6.0
5. The a/c/e front-end operating systems supported are Sun Solaris 8
Hardware revision 02/02 or higher and Windows 2000 with Service Pack
2. Windows NT will not be supported any longer. Windows XP is not
within the scope of this proposal.
6. Hand-over to acceptance test for a/c/e Release 1.1 will not be prior
to [**] . The date of launch will be agreed between Deutsche Borse
Systems and Eurex.
2.6 Co-operation Duties of Eurex
1. Eurex distributes documentation to members and other third parties.
2. Member and Staff Training (preparation and conduct) is under the sole
responsibility of Eurex.
3. Eurex will perform a thorough acceptance test.
4. The a/c/e 1.1 Release Simulation start has to be agreed upon. The
simulation will last at least [**] weeks.
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5. The a/c/e 1.1 Release Simulation is provided by Eurex:
? Eurex is responsible for all simulation related planning and member
information (Simulation Plan, Simulation Guide etc.).
? Simulation is performed using the a/c/e permanent simulation
environment.
? The a/c/e permanent simulation environment will be closed for two
weeks during the simulation preparation phase.
2.7 Acceptance
1. [**]
2. [**]
3. [**]
4. [**]
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3 Estimation of Effort and Costs
Under the assumptions mentioned above, the estimated effort in workdays for
this change request on a time and material basis is as follows:
? Build
? Hotfire Adaptations x WD
? Removal of Galaxy from XXXX x WD
? Java Trading GUI x WD
? Regression test x WD
? Conversion test a/c/e 1.0 to Eurex 4.1-1 x WD
? Kit Build x WD
? Implementation of a/c/e 1.0 SIRs between Feb 1 and May 1, 2002 x WD
? Contingency 10% x WD
--------------------------------------------------------------------------------
? Total x WD
--------------------------------------------------------------------------------
At an average hourly rate of [**] (Euro), the total estimated effort of xWD
translate to total estimated costs of (Euro) x.
Travel expenses are not included in the above estimation and will be charged
separately according to the travel policy of Group Deutsche Borse.
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4 Proposed Time-line and Schedule
[**]
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5 Decision
Zurich, __________ Zurich, _________
___________________________ ________________________
Schweizer Borse Schweizer Borse
Frankfurt, _________ Frankfurt, _________
____________________________ _________________________
Deutsche Borse AG Deutsche Borse AG
Frankfurt, __________ Frankfurt, __________
____________________________ _________________________
Eurex Eurex
Frankfurt, __________ Frankfurt, __________
____________________________ __________________________
Deutsche Borse Systems AG Deutsche Borse Systems AG
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