Confidential Treatment Requested by CBOT Holdings, Inc.
EXECUTION
MANAGED SERVICES AGREEMENT
This Managed Services Agreement (this "Agreement"), dated as of May 13,
2003, is between 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(R)" to facilitate the trading of
certain securities, futures, and options contracts. The CBOT desires LIFFE's
assistance in operating LIFFE CONNECT for use by the CBOT and in conducting 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 the Software.
C. LIFFE and the CBOT have also entered into a Development Services
Agreement, dated March 5, 2003 (the "Development Services Agreement"), whereby
LIFFE has agreed to provide to the CBOT a variety of services supporting the
creation and implementation 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.
D. In addition, LIFFE has agreed, subject to the terms and conditions
hereof, to provide to the CBOT a variety of information technology, operational,
and other services supporting the ongoing operation of LIFFE CONNECT as a
platform for the CBOT Electronic Exchange.
E. This Agreement is supplemental to and shall be read in conjunction with
the Software License Agreement and, to the extent applicable, the Development
Services 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
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In this Agreement, the following expressions shall mean, respectively:
"AAA" shall have the meaning set forth in Section 20.3.
"AAA Rules" shall have the meaning set forth in Section 20.3.
"Affiliate" means any Person that, directly or indirectly, controls, is
controlled by or is under common control with a specified Person.
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"Agreement" shall have the meaning set forth above.
"API" means the LIFFE CONNECT application programming interface from a
Trading Application to the Trading Host.
"AQS Service" shall have the meaning set forth in Section 2.2(e).
"Arbitration Fees" shall have the meaning set forth in Section 20.3.7.
"Audit Data" shall have the meaning set forth in Section 2.2(g).
"Audit Data Interface Service" shall have the meaning set forth in Section
2.2(g).
"Business Day" means any calendar day other than any Saturday, Sunday, U.S.
bank holiday, and U.K. public or bank holiday.
"Call" shall mean any notification, inquiry, request or other communication
relating to the CBOT Electronic Exchange, whether conveyed in person or via
telephone, email, or other media.
"Call Management Service" shall have the meaning set forth in Section
2.3(a).
"Call Record" means that information relating to a Call as is required by
LIFFE and logged into HEAT in such format as is specified by LIFFE.
"CBOT Call Management Procedures" shall have the meaning set forth in
Section 3.1.
"CBOT Controlled Sites" means those Equipment Installation Sites comprising
the CBOT's Premises and premises owned or controlled by Market
Participants.
"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 Electronic Exchange Parameters" means those parameters for the CBOT
Electronic Exchange agreed upon by the Parties and set forth in Paragraph 5
of Schedule A.
"CBOT Indemnitees" shall have the meaning set forth in Section 18.1.
"CBOT Marketing Materials" shall have the meaning set forth in Section 9.1.
"CBOT Matching Engine Service" shall have the meaning set forth in
Section 2.2(a).
"CBOT's Premises" means those locations owned or controlled by the CBOT,
including such locations used by the CBOT for disaster recovery for CBOT
Technology.
"CBOT's Project Manager" means the individual designated by the CBOT to be
responsible on behalf of the CBOT for the day-to-day management of the
CBOT's obligations under the Agreement.
"CBOT Property" shall have the meaning set forth in Section 15.2.
"CBOT Rules" shall have the meaning set forth in Section 7.5.
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Confidential Treatment Requested by CBOT Holdings, Inc.
"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.
"CFTC" means the United States Commodity Futures Trading Commission.
"Change Control Procedures" shall have the meaning set forth in Section
2.6.
"Change Management Service" shall have the meaning set forth in
Section 2.3(d).
"Change Request" shall have the meaning set forth in Section 2.6.
"Charge Rates" shall have the meaning set forth in Schedule M.
"Charges" shall have the meaning set forth in Section 11.1.
"Claim" shall have the meaning set forth in Section 18.1.
"Components" means those software applications identified in Part 1 of
Schedule B hereto.
"Confidential Information" shall have the meaning set forth in
Section 16.1.
"Connect Key Management Facility Service" shall have the meaning set forth
in Section 2.2(c).
"Connection Services Charges" shall have the meaning set forth in
Schedule M.
"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, Chicago, New York,
Paris, Amsterdam, and those locations agreed by the Parties, to which
points of presence connectivity to Equipment Installation Sites will be
provided.
"Core Network Maintenance Fee" shall have the meaning set forth in
Schedule M.
"Core Network Maintenance Service" shall have the meaning set forth in
Section 2.4(c).
"Data Storage Management Service" shall have the meaning set forth in
Section 2.3(e).
"Development Services Agreement" shall have the meaning set forth in
Recital C above.
"Disaster" means an Incident in which one or more of the LIFFE data centre
facilities hosting the Managed Services has been so severely disrupted as
to preclude, in LIFFE's reasonable judgment, any prospect of providing the
affected Managed Services from such data centre(s) in accordance with the
Service Targets.
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Confidential Treatment Requested by CBOT Holdings, Inc.
"Disputes" shall have the meaning set forth in Section 20.1.
"Documentation" means, collectively, (i) the documentation set forth in
Part 2 of Schedule B, 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 be the Go Live Date.
"Equipment" means the computer hardware, including processors, memory,
discs, screens, printers, routers, and hubs to be used with the Software,
as provided in accordance with either this Agreement or the Development
Services Agreement.
"Equipment and Data Centre Maintenance Fee" shall have the meaning set
forth in Schedule M.
"Equipment and Data Centre Maintenance Service" shall have the meaning set
forth in Section 2.4(b).
"Equipment Changes" shall have the meaning set forth in Section 5.1.3.
"Equipment Installation Sites" shall have the meaning set forth in the
Development Services Agreement, as may be modified from time to time by
agreement of the Parties.
"Equipment Services Charges" shall have the meaning set forth in
Schedule M.
"Equipment Uplifts" shall have the meaning set forth in Section 5.1.1.
"Escrow Agreement" shall have the meaning set forth in the Software License
Agreement.
"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.
"Exclusions" shall have the meaning set forth in Section 3.2.3.
"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.
"Governance Committee" shall have the meaning set forth on Schedule C.
"HEAT" shall have the meaning set forth in Section 2.3(a).
"ICDR" shall have the meaning set forth in Section 20.3.
"IMAC Service" shall have the meaning set forth in Section 2.2(l).
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Confidential Treatment Requested by CBOT Holdings, Inc.
"Incident" means an act or omission that impacts the Managed Services in a
materially adverse manner.
"Incident Management Service" shall have the meaning set forth in
Section 2.3(b).
"Independent Software Vendors" and "ISVs" mean those independent software
providers who develop systems via which access to the CBOT Matching Engine
may be achieved.
"Initial Term" shall have the meaning set forth in Section 12.1.
"Interfaces" means, collectively, the API, Trade Data Interface, Audit Data
Interface, Standing Data Interface, Market Data Interface and Miscellaneous
File Transfer Interface.
"Interface Sublicense Agreement" shall have the meaning set forth in the
Software License Agreement.
"IRS" shall have the meaning set forth in Section 11.3.
"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 CONNECT Logo" means LIFFE's registered xxxx "LIFFE CONNECT and
Design," depicted in Schedule L.
"LIFFE Data Centre Disaster Recovery Service" shall have the meaning set
forth in Section 2.3(c).
"LIFFE Indemnitees" shall have the meaning set forth in Section 18.2.
"LIFFE's Project Manager" shall have the meaning set forth in Schedule D.
"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 15.1.
"Losses" shall have the meaning set forth in Section 18.1.
"M&C Export Data" means a file containing information (i) produced, upon
request, by the M&C Observer and (ii) transmitted to the CBOT via the
Miscellaneous File Transfer Interface.
"Maintenance Services" shall have the meaning set forth in Section 2.4.
"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
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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 IT Services" shall have the meaning set forth in Section 2.2.
"Managed Services" shall have the meaning set forth in Section 2.1.
"Managed Services Fee" shall have the meaning set forth in Schedule M.
"Managed Support Services" shall have the meaning set forth in Section 2.3.
"Marks" shall have the meaning set forth in Section 9.2.
"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 ssuch futures or options, trade prices, settlement prices,
estimated and actual contract volume, information regarding market activity
including off-market trades, 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 Data Interface Service" shall have the meaning set forth in
Section 2.2(i).
"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, that clearing organization designated by the CBOT 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 the
Development Services Agreement.
"Material New Software Release" shall have the meaning set forth in
Section 4.1.1.
"MCC" means one or more of the CBOT's Monitoring and Control Centres.
"MCC Monitoring and Control Service" shall have the meaning set forth in
Section 2.2(b).
"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.
"Member Site" means that premises of a Member at which Equipment is
installed via the IMAC Service.
"Miscellaneous File Transfer Interface Service" shall have the meaning set
forth in Section 2.2(j).
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"Monitoring Tools" means screen displays, as agreed by the Parties, to
monitor activity on the CBOT Electronic Exchange, as agreed by the Parties.
"Monitoring Tools Service" shall have the meaning set forth in
Section 2.2(d).
"New Software Releases" shall have the meaning set forth in Section 4.1.1.
"New Terms" shall have the meaning set forth in Section 12.2.
"Non-Restricted Documentation" means all Documentation other than
Restricted Documentation, including the Documentation identified in
Part 2(a) of Schedule B.
"OIA" means the CBOT's Office of Investigations and Audits.
"OIA Monitoring and Control Service" shall have the meaning set forth in
Section 2.2(b).
"On-Site" shall have the meaning set forth in Section 3.2.2.
"Out of Pocket Expenses" shall have the meaning set forth in Section
11.1(h).
"Party" and "Parties" shall have the meanings set forth above.
"Payment Date" shall have the meaning set forth in Section 11.4.
"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.
"Program Services" shall have the meaning set forth in Section 2.1.
"Program Services Charges" shall have the meaning set forth in Schedule M.
"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.
"Release Notes" means a summary of any changes applicable to a New Software
Release, including a description of additions, enhancements or corrections
to existing functionality, together with a list of known bugs and bug fixes
applicable to such New Software Release.
"Renewal Term" shall have the meaning set forth in Section 12.2.
"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.
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"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 B.
"Service Management Service" shall have the meaning set forth in
Section 2.3(f).
"Service Period" means that time period, agreed upon by the Parties, [**]
"Services" shall have the meaning set forth in Section 2.1.
"Service Target" means the targeted level of performance of a Managed
Service during the applicable Service Period, as set forth in Paragraph 4
of Schedule A. Each Service Target is defined within the context of one or
more Service Thresholds.
"Service Threshold" means that limit, agreed upon by the Parties, in
respect of a Managed Service, beyond which the Service Target(s) for such
Managed Service may be adversely impacted. The Service Thresholds for each
applicable Managed Service are set forth in Paragraph 4 of Schedule A.
"Service Time" means the scheduled availability of a Managed Service during
a Trading Day, expressed as the (i) schedule start time of the Managed
Service, (ii) scheduled close time of the Managed Service, and (iii) number
of minutes per Trading Day the Managed Service is scheduled to be
available, as shown in Paragraph 4 of Schedule A.
"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 under this Agreement.
"Software Change" shall have the meaning set forth in Section 4.2.
"Software License Agreement" shall have the meaning set forth in Recital B
above.
"Software Maintenance Fee" shall have the meaning set forth in Schedule M.
"Software Maintenance Service" shall have the meaning set forth in
Section 2.4(a).
"Specifications" shall have the meaning set forth in the Development
Services Agreement.
"Standing Data" means data (including information relating to contracts,
traders, and prices) required prior to the commencement of each Trading Day
[**] as Schedule A-4 to the Development Services Agreement.
"Standing Data Interface Service" shall have the meaning set forth in
Section 2.2(f).
"Summary Statement of Work" shall have the meaning set forth in
Section 2.7.
"Superseded Versions" shall have the meaning set forth in Section 4.3.
"System Software" shall have the meaning set forth in Section 5.3.4(c).
"Taxes" shall have the meaning set forth in Section 11.3.
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"Technical Conformance Service" shall have the meaning set forth in Section
2.2(k).
"Technical Conformance Testing" shall have the meaning set forth in the
Development Services Agreement.
"Termination Costs" shall have the meaning set forth in Schedule M.
"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).
"Trade Data" means information relating to orders that are (i) [**].
"Trade Data Interface Service" shall have the meaning set forth in Section
2.2(h).
"Trading Application" means any front-end trading application or other
software which interfaces with, and has been conformed with, the API.
"Trading Day" means any calendar day, measured by U.S. Central Time, other
than any Saturday, Sunday, U.S. bank holiday, or other day the CBOT
designates as a trading holiday.
"Trading System" means LIFFE CONNECT as modified, pursuant to the
Development Services Agreement or this Agreement, for use as a platform for
the CBOT Electronic Exchange.
"Transition Period" shall have the meaning set forth in Section 14.3.
"Upgrades" means, collectively, improvements, enhancements, additions and
modifications to or 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 17.2.
"Wide Area Network Router" means a router that provides access to and from
the Core Network.
2. Services
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2.1 Overview. During the term of this Agreement, LIFFE shall use reasonable
efforts to provide to the CBOT (a) managed information technology services and
managed support services, as further detailed in Sections 2.2 and 2.3 and in
Schedule A (collectively, the "Managed Services"); (b) the Maintenance Services;
and (c) (i) any Software Changes agreed via a Change Request and, upon the
Parties' agreement, set out in a Summary Statement of Work; and (ii) any other
services relating to the operation of the CBOT Electronic Exchange described
herein or agreed via a Change Request (collectively, the "Program Services" and,
together with the Managed Services and the Maintenance Services, the
"Services").
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2.2 Managed Information Technology Services. LIFFE shall use reasonable
efforts to provide the following managed information technology services
(collectively, the "Managed IT Services") in accordance with the relevant
Service Times and Service Targets set forth in Schedule A. Subject to Section
2.5, LIFFE shall have no obligation to meet (but shall continue to use
reasonable efforts to provide the Managed IT Services in accordance with) a
Service Target (i) for as long as a relevant Service Threshold or CBOT
Electronic Exchange Parameter is exceeded, and (ii) for the duration of the
impact upon the Managed Services of such exceeded Service Threshold or CBOT
Electronic Exchange Parameter in a manner that impedes LIFFE's ability to meet
the Service Targets. The Components specified in this Section 2.2 have been
licensed to the CBOT pursuant to the Software License Agreement and are set out
in Schedule B.
(a) provision of and [**], the CBOT shall provide to LIFFE a
well-founded, reasoned, authoritative opinion of competent United
States patent counsel that (i) all Services provided by LIFFE to
the CBOT under the Development Services Agreement, this
Agreement, the Consultancy Framework Agreement, and/or any other
agreements between the Parties relating to the CBOT Electronic
Exchange, including the procurement, installation and operation
of Equipment; (ii) the Equipment, System Software and Licensed
Technology; and (iii) the use of such Equipment, System Software
and Licensed Technology by or on behalf of the CBOT and Market
Participants, are encompassed by the Xxxxxx License and will not
violate the terms of the Xxxxxx License.
(b) provision of [**] ("MCC Monitoring and Control Service") and (ii)
OIA ("OIA Monitoring and Control Service");
(c) provision of the [**] ("Connect Key Management Facility
Service");
(d) provision of [**], as agreed by the Parties ("Monitoring Tools
Service");
(e) provision of [**] ("AQS Service");
(f) provision and [**] ("Standing Data Interface Service");
(g) provision and [**] ("Audit Data Interface Service");
(h) delivery from the [**] ("Trade Data Interface Service");
(i) delivery from the [**] ("Market Data Interface Service");
(j) delivery from the [**] ("Miscellaneous File Transfer Interface
Service");
(k) assisting the CBOT, as agreed by the Parties, in [**] ("Technical
Conformance Service"); and
(l) provision of a service to [**] ("IMAC Service").
2.3 Managed Support Services. LIFFE shall use reasonable efforts to provide
the CBOT the following managed support services (collectively, the "Managed
Support Services"), in accordance with the relevant Service Times and Service
Targets. Subject to Section 2.5, LIFFE shall have no obligation to meet (but
shall continue to use reasonable efforts to provide the Managed Support Services
in accordance with) a Service Target (i) for as long as a relevant Service
Threshold or CBOT Electronic Exchange
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Parameter is exceeded, and (ii) for the duration of the impact upon the Managed
Services of such exceeded Service Threshold or CBOT Electronic Exchange
Parameter in a manner that impedes LIFFE's ability to meet the Service Targets;
(a) provision of [**] in accordance with any relevant guidelines as
may be agreed upon by the Parties, as further detailed in Section
3.2 ("Call Management Service");
(b) provision of a service to [**], as further detailed in Section
3.2 and (y) notify the CBOT of those activities undertaken
("Incident Management Service");
(c) provision of a service to [**], as further detailed in Section
3.2 and (ii) notify the CBOT of those activities undertaken
("LIFFE Data Centre Disaster Recovery Service");
(d) prior notification, within a reasonable period of time (or if
prior notification is not reasonably practicable, prompt
notification), [**] ("Change Management Service");
(e) [**] ("Data Storage Management Service"); and
(f) management of LIFFE's delivery of the Managed Services and the
Maintenance Services in accordance with Schedule C, including:
[**]
("Service Management Service").
2.4 Maintenance Services. LIFFE shall use reasonable efforts to provide the
CBOT the following maintenance services (collectively, the "Maintenance
Services"):
(a) ongoing maintenance of the Software sufficient to enable LIFFE to
deliver the Managed IT Services in accordance with Service
Targets and the CBOT Electronic Exchange Parameters, and
including the provision of any New Software Releases in
accordance with Section 4.1 ("Software Maintenance Service").
(b) ongoing maintenance of the Equipment and of LIFFE data centres
hosting the Managed Services sufficient to enable LIFFE to
deliver the Managed IT Services in accordance with (i) the
Service Targets, (ii) the CBOT Electronic Exchange Parameters,
and (iii) any applicable guidelines issued from time to time by
the respective manufacturers or suppliers of the Equipment, and
including the provision of Equipment Uplifts in accordance with
Section 5.1.1 and the provision of Replacements in accordance
with Section 5.1.2 ("Equipment and Data Centre Maintenance
Service"); and
(c) ongoing maintenance of the Core Network sufficient to enable
LIFFE to deliver the Managed IT Services in accordance with (i)
the Service Targets, (ii) the CBOT Electronic Exchange
Parameters, and (iii) any applicable guidelines issued from time
to time by the respective manufacturers or suppliers of those
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data circuits and hardware comprising the Core Network ("Core
Network Maintenance Service").
2.5 Service Targets. Notwithstanding any provision herein to the contrary,
LIFFE shall not be responsible for any Service Target that is not met to the
extent such failure to meet such Service Target is caused by any applicable CBOT
Electronic Exchange Parameters and/or Service Thresholds having been exceeded.
2.6 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 D 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 D (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.
2.7 Summary Statements of Work. In the event a Change Request provides for
LIFFE's delivery hereunder of a Software Change, upon the Parties' agreement,
the Parties shall agree upon and execute a summary statement of work in the form
of the Master Summary Statement of Work set forth in Schedule E hereto (each
such duly executed Summary Statement of Work, a "Summary Statement of Work").
Each Summary Statement of Work shall be incorporated in and subject to the terms
and conditions of this Agreement. All services to be provided pursuant to a
Summary Statement of Work will constitute "Program Services" hereunder.
2.8 Site. Except as otherwise provided in this Agreement or as otherwise
agreed by the Parties, 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 F.
2.9 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 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.
2.10 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
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use good faith efforts to comply with all applicable laws and regulations in the
performance of its obligations under this Agreement.
2.11 Delays. LIFFE shall not be responsible for any delays or other
consequences arising from any failure by the CBOT to perform, or any delay by
the CBOT in performing, any of its obligations under this Agreement.
3. Support
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3.1 CBOT's Support Obligations. The CBOT shall provide Market Participants
first-line support regarding the Managed Services by responding to Calls from
Market Participants in accordance with the procedures set forth in Paragraph 1
of Schedule G hereto (the "CBOT Call Management Procedures"). In addition, the
CBOT shall comply with the Call Management Procedures in respect of all Calls
from CBOT personnel, or subcontractors or agents of the CBOT, relating to
LIFFE's delivery of the Services.
3.2 LIFFE's Support Obligations.
3.2.1 General Obligations. Following LIFFE's receipt of any Call,
LIFFE shall, as part of the Call Management Service, assess the
nature of the subject matter of any Call Record routed to LIFFE
and handle the Call in accordance with those procedures set
forth in Paragraph 2 of Schedule G and the applicable Service
Targets set forth in Paragraph 4.2 of Schedule A, subject to the
associated Service Thresholds and applicable CBOT Electronic
Exchange Parameters.
3.2.2 Incidents. If LIFFE determines a Call Record identifies an
Incident, LIFFE shall (a) classify the Incident as (i) a
Disaster or, in respect of Incidents other than Disasters, as
(ii) Severity 1, 2, 3 or 4, in accordance with the criteria set
forth in Paragraph 4.1.4 of Schedule A, and (b) initiate the
LIFFE Data Centre Disaster Recovery Service or the Incident
Management Service, as appropriate. Such LIFFE Data Centre
Disaster Recovery Service or Incident Management Service will be
provided (a) remotely, via telephone or on-line, (b) at CBOT
Controlled Sites, (c) at such other locations as LIFFE deems
appropriate, or (d) at premises where any Equipment, Software or
Core Network components to which the relevant Incident likely
relates may be located ("On-Site"), upon the CBOT's reasonable
request. Notwithstanding the foregoing, in the event that the
CBOT requests a Service be provided On-Site and LIFFE reasonably
believes that the same or substantially similar level of service
can be provided remotely, then LIFFE shall be required to
provide such Service On-Site only upon the CBOT's written
agreement to pay to LIFFE (i) fees for the time expended by
LIFFE in connection with such on-site Service, calculated in
accordance with the Charge Rates; and (ii) all associated Out of
Pocket Expenses.
3.2.3 Scope of Managed Support Services. Unless otherwise expressly
stated herein or agreed upon by the Parties (LIFFE's agreement
not to be unreasonably withheld), LIFFE shall have no obligation
to provide (a) the Call Management Service in respect of any
Call that does not relate to LIFFE's delivery of the Managed
Services; or (b) any Managed Support Services with respect to
any Disaster, other Incident, or other act or omission LIFFE
reasonably determines was caused by:
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(i) the modification of the Licensed Technology, or the
Equipment or any portion of the Core Network by any Person
other than LIFFE or a subcontractor or agent of LIFFE,
unless such modification was made at LIFFE's direction,
with LIFFE's consent, or pursuant to the Escrow Agreement;
(ii) integration of Software, in whole or in part, by any Person
other than LIFFE or a subcontractor or agent of LIFFE, with
any software other than a Trading Application for which a
trader key or view only key has been issued following
Market Participant Testing;
(iii) use of the Software, the Equipment, or the Core Network in
a manner or form that is in contravention of this
Agreement, the Software License Agreement and/or the
Development Services Agreement, or, in respect of Market
Participants,an Interface Sublicense Agreement;
(iv) any other failure by the CBOT to perform its obligations
under this Agreement, the Development Services Agreement or
the Software License Agreement; or
(v) Trading Applications, CBOT Technology, other CBOT Property,
property of any Market Participant or any other technology,
excluding the Software, the Equipment, and the Core
Network, unless such technology has been (i) provided by or
on behalf of LIFFE, or (ii) expressly approved by LIFFE.
For the avoidance of doubt, LIFFE's assistance with Market
Participant Testing, LIFFE's assistance with Technical
Conformance Testing, and LIFFE's performance of the
Technical Conformance Service do not constitute LIFFE's
"approval" of Trading Applications or other technology for
purposes of this Section 3.2.3.
(Sections 3.2.3(i) to 3.2.3(v), collectively, the "Exclusions").
3.2.4 Services Outside Scope. In the event that (a) the CBOT routes to
LIFFE any Call that LIFFE reasonably determines does not relate
to LIFFE's delivery of the Managed Services, or (b) subject to
Paragraph 2.2 of Schedule G, LIFFE otherwise provides any
Managed Support Services with respect to any act or omission
LIFFE reasonably determines was caused by an Exclusion, then (i)
the CBOT shall pay to LIFFE (x) fees for the time expended by
LIFFE in connection with such Managed Support Services,
calculated in accordance with the Charge Rates; and (y) all
associated Out of Pocket Expenses and (ii) LIFFE shall have no
obligation to provide such Managed Support Services in
accordance with the Service Targets.
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4. Maintenance
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4.1 New Software Releases.
4.1.1 Overview. [**].
4.1.2 Release Notes. [**].
4.1.3 Implementation. [**].
4.2 Software Changes. Any Upgrade to one or more Components that is
requested by the CBOT ("Software Change") shall be provided only upon, and in
accordance with, (a) the Parties' agreement via a Change Request, and (b) as the
Parties deem appropriate, a Summary Statement of Work. The CBOT shall
incorporate, and/or require all Market Participants receiving the Software
Change to incorporate, such Software Change into the Trading System in
accordance with the terms of the relevant Change Request and/or Summary
Statement of Work, as applicable. For the avoidance of any doubt, "Software
Change" does not include (i) any Software provided pursuant to the IMAC Service
or (ii) any New Software Release.
4.3 Superseded Versions. Upon incorporation into the Trading System of
a New Software Release or a Software Change, the CBOT shall (a) promptly return
to LIFFE or, with LIFFE's prior written consent, destroy and certify as
destroyed, the version of the Component(s) superseded by such Upgrade and all
copies thereof (the "Superseded Version") in the CBOT's possession and/or
control, and (b) require each Market Participant to promptly return to LIFFE or,
with LIFFE's prior written consent destroy and certify as destroyed, any
Superseded Version in such Market Participant's possession and/or control.
4.4 Scope of Maintenance Services. Unless otherwise expressly stated
herein or agreed upon by the Parties (LIFFE's agreement not to be unreasonably
withheld), LIFFE shall have no obligation to provide the Maintenance Services in
respect of any Exclusion.
4.5 Services Outside Scope. In the event that LIFFE provides any
Maintenance Services in respect of any Exclusion, then the CBOT shall pay to
LIFFE (i) fees for the time expended by LIFFE in connection with Maintenance
Services in respect of any Exclusion, calculated in accordance with the Charge
Rates; and (ii) all associated Out-of-Pocket Expenses.
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5. Equipment
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5.1 Replacements.
5.1.1 Equipment Uplifts. As part of the Equipment and Data Centre
Maintenance Service, during the [**] of the Initial
Term, and in any event by no later than [**],
LIFFE shall (a) procure those Replacements and System
Software identified in Schedule H hereto ("Equipment
Uplifts"), and (b) deliver such Equipment Uplifts to, and
install such Equipment Uplifts at, such installation sites
as are specified in Schedule H or such other locations as
may be agreed upon by the Parties. Such Equipment Uplifts
will thereafter be deemed "Equipment" and "System
Software," as appropriate, for purposes of this Agreement.
5.1.2 Replacements. As part of the Equipment and Data Centre
Maintenance Service, 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; provided that LIFFE shall
provide the CBOT prior notification (or if prior
notification is not feasible, prompt notification) and an
opportunity for testing of any Replacements, where the
Parties agree that testing is necessary. All such
Replacements will thereafter be deemed "Equipment" for
purposes of this Agreement.
5.1.3 Equipment Changes. Any Replacements requested by the CBOT,
other than the Equipment Uplifts, ("Equipment Changes")
shall be procured, delivered and installed only upon, and
in accordance with the Parties' agreement via a Change
Request. Any such Equipment Changes provided by LIFFE
hereunder will be deemed "Equipment" for purposes of this
Agreement. For the avoidance of any doubt, "Equipment
Changes" does not include any Equipment provided pursuant
to the IMAC Service.
5.2 Disablement and Repossession.
5.2.1 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 and (b) providing
prior notice to the CBOT, to the extent reasonably
practicable. Notwithstanding the foregoing, LIFFE shall, to
the extentreasonably practicable, provide the CBOT prior
notice of any disablement or repossession of Equipment at a
CBOT Controlled Site.
5.2.2 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.
5.3 Responsibilities of the CBOT.
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5.3.1 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 5.2;
(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.
5.3.2 Prior to Installation. In connection with each installation
of Equipment at a CBOT Controlled Site, the CBOT shall, at
no expense to LIFFE 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.
5.3.3 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.
5.3.4 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
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(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 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
or any portion thereof; and
(c) Software. With respect to all software embedded in or
otherwise included within the Equipment ("System Software"),
the 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
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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 Software or Equipment,
or otherwise use the System Software to further any
purpose which is illegal.
5.3.5 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.
5.3.6 Market Participants.
5.3.6.1 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.
5.3.6.2 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 5.3.4; 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
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LIFFE written notice of such claim, demand, cause of action
or subpoena.
5.3.7 Change Notification. The CBOT shall provide LIFFE's Project
Manager prior written notice (or, if prior written notice is not
reasonably practicable, immediate written notification) of (a)
any changes to the physical environment (i) at CBOT's Premises
in which Equipment and/or Software operate (e.g. maintenance or
shutdowns of power supply or temperature control devices), and
(ii) to the extent that the CBOT is aware, at any other CBOT
Controlled Site in which Equipment and/or Software operate; and
(b) any changes to, relocations of, or maintenance of any CBOT
Technology that interfaces with Software and/or Equipment.
5.4 Responsibilities of LIFFE.
5.4.1 Liens. 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.
5.4.2 Upgrades and Replacements. Except as expressly provided in this
Agreement, nothing herein shall require LIFFE to (a) create any
Upgrades or procure 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. Core Network
6.1 Permitted Purpose. The CBOT shall use the Core Network solely for
purposes of (a) operating (including testing and development pursuant
to the Development Services Agreement or hereunder) the CBOT
Electronic Exchange via one or more Interfaces with the Equipment, and
(b) carrying out rights or obligations of the CBOT pursuant to the
Development Services Agreement or the Managed Services Agreement.
6.2 Acceptable Use Policy. The CBOT shall comply, and use reasonable
efforts to ensure that all Market Participants comply, with LIFFE's
Core Network Acceptable Use Policy, a copy of which is attached as
Schedule I hereto.
6.3 Notification
6.3.1 By the CBOT. The CBOT shall promptly notify LIFFE if the CBOT
becomes aware of (a) any security vulnerability relating to the
Core Network, and (b) any violation of the Acceptable Use
Policy.
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6.3.2 By LIFFE. Subject to Section 16, if not so prohibited by a
regulatory or other governmental authority or an order of a
court of competent jurisdiction, LIFFE shall (a) promptly notify
the CBOT of any judicial or governmental request, requirement or
order under law regarding the investigation and/or prosecution
of activities relating to the CBOT Electronic Exchange, and (b)
cooperate with the CBOT to respond to any such request,
requirement or order.
6.4 Suspension
6.4.1 At LIFFE's Request. In order to protect the CBOT Electronic
Exchange and all users of the Core Network, LIFFE may, at its
option, suspend access to the Core Network of the CBOT or any
Market Participant in the event of a breach of LIFFE's Core
Network Acceptable Use Policy or the CBOT's obligations under
Section 6.1 by the CBOT or such Market Participant; provided
that LIFFE will not suspend such access without reasonable cause
and shall use good faith efforts to provide the CBOT prior
notice of any such suspension.
6.4.2 At the CBOT's Request. LIFFE shall suspend any Market
Participant's access to the Core Network as reasonably requested
by the CBOT, at the CBOT's cost.
7. General Obligations of the CBOT
7.1 Dependencies. In addition to all other obligations of the CBOT set
forth in this Agreement, the CBOT shall perform those dependencies set forth in
Schedule J hereto.
7.2 Security. In addition to all other duties of the CBOT specified
hereunder and/or in the Software License Agreement and/or Development Services
Agreement in respect of Licensed Technology and Equipment and the use or access
thereof by the CBOT and Market Participants, the CBOT shall (a) use reasonable
efforts to comply with LIFFE's security policy, a copy of which is attached as
Schedule K hereto; (b) 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; (c) 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; and (d) 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.
7.3 CBOT's Premises. In addition to complying with the requirements set
forth in Section 5.3, 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.
7.4 Materials and Assistance. In addition to providing those resources
identified in Schedule J and Sections 5.3 and 7.3, 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; (b) ensure that
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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.
7.5 Trading Rules. CBOT rules regarding the CBOT Electronic Exchange (the
"CBOT Rules") may not conflict with any term set forth in this Agreement, the
Software License Agreement, or the Development Services Agreement.
7.6 Compliance with Laws. The CBOT shall use good faith efforts to comply
with all applicable laws and regulations relating to the operation of the CBOT
Electronic Exchange.
8. General Obligations of Both Parties
8.1 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 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.
8.2 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.
9. Marketing
9.1 Marketing. The CBOT shall, in accordance with Sections 9.2 to 9.7
below, (a) refer to the automated derivatives trading and order matching system
utilized by the CBOT Electronic Exchange as the "LIFFE CONNECT(R)" system or
platform; and (b) in any and all web pages, brochures, advertisements and all
other marketing or promotional materials, press releases, or other media that
market, promote or otherwise reference the Trading System (collectively, the
"CBOT Marketing Materials"), (i) in respect of all visual media, prominently
display (x) the Xxxx LIFFE CONNECT(R) and/or the LIFFE CONNECT Logo and (y) the
phrase "e-cbot, powered by LIFFE CONNECT" in such format as may be agreed upon
by the Parties; and (ii) in respect of all broadcast media, prominently
broadcast (x) the Xxxx LIFFE CONNECT(R) and (y) the phrase "e-cbot, powered by
LIFFE CONNECT(R)" in such format as may be agreed upon by the Parties.
9.2 License. Subject to the terms and conditions hereof, LIFFE hereby
grants to the CBOT a non-exclusive, non-transferable (except as set forth in
Section 25) right and license (a) to use, [**], and in any additional
jurisdictions as LIFFE may agree, LIFFE's registered trademarks "LIFFE CONNECT"
and the LIFFE CONNECT Logo (collectively, the "Marks") in connection with the
marketing and operation of the CBOT Electronic Exchange and those rights and
obligations set forth in this Agreement, the Software License Agreement
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and the Development Services Agreement; and (b) to sublicense to ISVs the right
to use the Marks subject to all of the terms and conditions set forth in this
Section 9 (including Section 9.5).
9.3 Use. The CBOT shall (a) in each visual CBOT Marketing Material
containing or displaying one or both of the Marks, (i) display each Xxxx
together with a superscript /(R)/ placed at the end of the Xxxx (e.g. LIFFE
CONNECT/(R)/; and (ii) include, at least once in each such CBOT Marketing
Material, the following footnote, or a formative thereof as may be agreed by
LIFFE: "[LIFFE CONNECT/(R)/The LIFFE CONNECT Logo] is a trademark of LIFFE
Administration and Management and is registered in Australia, Hong Kong,
Singapore, the United States, and the United Kingdom, is a registered Community
Trade Xxxx, and is the subject of a pending application for registration in
Japan"; and (b) otherwise use the Marks in a manner and form consistent with (i)
the usage guidelines set forth in Schedule L hereto, as may be amended by LIFFE
from time to time, and (ii) any other usage guidelines and modifications thereof
as LIFFE may provide to the CBOT from time to time.
9.4 Restrictions. The CBOT acknowledges (a) LIFFE's exclusive right, title,
and interest in and to the Marks and (b) that the CBOT's permitted use of the
Marks will not vest in the CBOT any right, title, or interest in or to the
Marks. The CBOT shall not (i) directly or indirectly, cause to be done any act
contesting or in any way impairing LIFFE's right, title, or interest in the
Marks, (ii) in any manner represent that it possesses any ownership interest in
the Marks, or (iii) except as expressly permitted hereunder, adopt, use, attempt
to register, or register, at any time or in any jurisdiction, either of the
Marks or any term identical to or confusingly similar to either of the Marks.
9.5 Approval. Prior to the publication, public broadcast or other
distribution or dissemination to Market Participants or other members of the
public of any CBOT Marketing Material, the CBOT shall submit to the LIFFE Market
Solutions Director of Sales and Marketing or his or her designee a
representative sample of such CBOT Marketing Material for LIFFE's prior written
approval. The CBOT shall not distribute or disseminate to Market Participants or
other members of the public any CBOT Marketing Material in respect of which the
CBOT has not obtained LIFFE's prior written approval. LIFFE has no right under
this Agreement to approve the CBOT's use of trademarks or service marks other
than the Marks.
9.6 Inspection. In order to assure the CBOT's compliance with the standards
and requirements provided herein, the CBOT shall, upon LIFFE's reasonable
request, (a) make available to representatives of LIFFE information relating to
use of the Marks and copies of all CBOT Marketing Materials; and (b) permit such
representatives to inspect all such CBOT Marketing Materials.
9.7 Violations of the Marks. The CBOT shall promptly notify LIFFE in
writing of any information relating to suspected infringements or other
violations of the Marks which the CBOT possesses or of which it becomes aware.
Notwithstanding the foregoing, the CBOT shall have no right to prosecute or
otherwise take any action in respect of any such violations; and LIFFE shall
have no obligation hereunder to investigate, prosecute or otherwise take any
action in respect of any such violations of which it is notified by the CBOT.
9.8 No CBOT License. Unless the Parties agree otherwise (and CBOT shall not
unreasonably decline to agree), LIFFE shall not use in any marketing or
promotional materials, press releases, or other materials publicly distributed
or disseminated by LIFFE any trademarks or service marks of the CBOT, including
"e-cbot" and "CBOT."
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10. Project Management
10.1 Appointments. In addition to complying with the requirements set forth
in Schedule C, each Party shall appoint and inform the other Party of the
identity of a Relationship Manager to serve as the individual responsible for
the day to day management of the relationship between LIFFE and the CBOT with
respect to the Services.
10.2 Substitutions. Each Party shall promptly notify the other in writing
of any substitutions for or replacements of such individuals appointed in
accordance with Section 10.1, as applicable, and shall take all reasonable steps
to minimize any potential adverse effects of such changes.
11. Charges
11.1 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, for LIFFE's performance of its Equipment
procurement obligations under Sections 5.1.1(a) and 5.1.3, the
Equipment Services Charges in accordance with Schedule M;
(b) pay to LIFFE, in addition to any amounts owed pursuant to Section
3.2.4, the Managed Services Fee set forth in Schedule M;
(c) pay to LIFFE, in addition to any amounts owed pursuant to Section
4.5, the Software Maintenance Fee set forth in Schedule M;
(d) pay to LIFFE, in addition to any amounts owed pursuant to Section
4.5, for the Equipment and Data Centre Maintenance Service, the
Equipment and Data Centre Maintenance Fee set forth on Schedule
M;
(e) pay to LIFFE, in addition to any amounts owed pursuant to Section
4.5, the Core Network Maintenance Fee set forth in Schedule M;
(f) pay to LIFFE, for the IMAC Service, the Connection Services
Charges set forth in Schedule M;
(g) pay to LIFFE, for all Program Services, the Program Services
Charges; and
(h) 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 N hereto
(collectively, "Out of Pocket Expenses");
(such Equipment Services Charges, Managed Services Fee, Software Maintenance
Fee, Equipment and Data Centre Maintenance Fee, Core Network Maintenance Fee,
Connection Services Charges, Program Services Charges, Out-of-Pocket Expenses
and all other amounts due hereunder, collectively, the "Charges").
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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.
11.2 Fixed Charges. Notwithstanding any provision herein to the contrary,
in the event LIFFE performs any Services (a) specified to be charged on a fixed
fee basis, and (b) occasioned by (i) the failure of the CBOT to fulfill, or
delay by the CBOT in fulfilling, any of its obligations under this Agreement or
(ii) the failure or malfunction of technology not owned, controlled, or provided
by or on behalf of LIFFE hereunder, the CBOT shall pay to LIFFE (x) fees for the
time expended by LIFFE in connection with such Services, on a time and materials
basis, calculated in accordance with the Charge Rates; and (y) all associated
Out of Pocket Expenses.
11.3 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
(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 25, 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 11.3, 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.
11.4 Invoices. LIFFE shall invoice the CBOT as set forth in Schedule M, 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
Program Services Charges or other Services charged on a time and materials basis
hereunder will set forth the name of each of the LIFFE Project Personnel who
performed such Program Services, the categories of work performed by such
individual, the grade of each such individual, and the Charge Rate for such
individual. 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.
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11.5 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's Project Manager and placement of a telephone call to the CBOT's
Relationship Manager, 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.
11.6 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.
12. Term
12.1 Initial Term. The initial term of this Agreement shall commence on the
Effective Date and shall continue for a period of five (5) years from the
Effective Date (the "Initial Term"), unless terminated earlier in accordance
with Section 13 or as otherwise provided in this Agreement.
12.2 Renewal. The Parties shall use good faith efforts to agree upon, by no
later than one (1) year prior to the end of the Initial Term or the then current
Renewal Term (as applicable), (a) the nature and scope of the Managed Services
and any other Services to be provided during the new Renewal Term, and (b) all
associated Service Targets, Service Thresholds, CBOT Electronic Exchange
Parameters and Charges; provided that variations in the Charge Rate shall remain
subject to Paragraph 5.3 of Schedule M (collectively, the "New Terms"). UNLESS
TERMINATED EARLIER IN ACCORDANCE WITH SECTION 13 OR AS OTHERWISE PROVIDED IN
THIS AGREEMENT, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR NO MORE THAN [**]
SUCCESSIVE PERIODS OF [**] YEARS EACH (EACH, A "RENEWAL TERM"); provided
that the Parties have agreed to the New Terms and amended this Agreement
accordingly by an instrument in writing signed by a duly authorized
representative of each Party. If the New Terms have not been agreed by a date
one (1) year prior to the end of the Initial Term or the then current Renewal
Term (as applicable), then CBOT may provide written notice to LIFFE that the
CBOT does not intend to renew the Agreement, and the Agreement will expire at
the end of the Initial Term or the then current Renewal Term (as applicable).
For the avoidance of doubt, the expiration of the Agreement at the end of the
Initial Term or a Renewal Term shall not constitute a termination of the
Agreement pursuant to Section 13, and the CBOT shall not be liable for
Termination Costs.
13. Termination
13.1 By CBOT. The CBOT may terminate this Agreement, for any reason, upon
written notice to LIFFE provided at least twelve (12) months prior to the end of
the Initial Term or the First Renewal Term (if any).
13.2 By LIFFE. LIFFE may terminate this Agreement, upon twelve (12) months
prior written notice to the CBOT, if [**] or any Affiliate of [**] directly or
indirectly acquires control of the CBOT.
13.3 By Either Party.
13.3.1 Material Breach. Subject to Section 14.3, at any time during
the term of this Agreement, either Party may terminate this
Agreement immediately upon written
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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.
13.3.2 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.
13.4 Automatic Termination. This Agreement will terminate automatically
upon termination of the Software License Agreement.
13.5 Termination Costs. In the event this Agreement is terminated pursuant
to Section 13 (excluding termination by the CBOT pursuant to Section 13.3), the
CBOT shall pay to LIFFE the Termination Costs as set forth in Schedule M.
14. Consequences of Termination
14.1 Equipment, Licensed Technology, and CBOT Marketing Materials.
14.1.1 In CBOT's Possession. In addition to complying with those
requirements set forth in Section 12.1 of the Software License
Agreement, upon or prior to the effective date of expiration or
termination of this Agreement, the CBOT shall (a) immediately
cease use of the Equipment, the Marks, and all Licensed
Technology; 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) as LIFFE may elect,
promptly return to LIFFE or permit LIFFE to repossess any
Equipment; and (iii) promptly return to LIFFE or, with LIFFE's
prior written consent destroy and certify as destroyed, any and
all other LIFFE Property and any and all CBOT Marketing
Materials containing or displaying the Marks in the CBOT's
possession and/or control.
14.1.2 In Market Participants' Possession. Upon or prior to the
effective date of expiration or 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) 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 (iii) promptly return to LIFFE or, with LIFFE's
written consent destroy and certify as destroyed, any and all
other LIFFE Property and any and all CBOT Marketing Materials
containing
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or displaying the Marks within such Market Participant's
possession and/or control; and (b) notwithstanding the
foregoing Section 14.1.2(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.
14.2 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 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.
14.3 Transition. In the event of LIFFE's notice of termination to the CBOT
pursuant to Section 13.3.1 for a material breach that is incapable of remedy,
LIFFE shall continue to provide to the CBOT the Managed Services for a period of
up to [**] from the date upon which notice of termination is given (the
"Transition Period"); provided that, within thirty (30) days following notice of
termination, (a) the CBOT has accepted full liability for such material breach
via written notice to LIFFE in a form acceptable to LIFFE, in LIFFE's sole
discretion; and (b) the CBOT has submitted to LIFFE reasonable assurances that
it has employed measures sufficient to prohibit repetition of such material
breach. Notwithstanding the foregoing, (i) during any Transition Period, LIFFE
shall not be held liable for any failure to perform any obligations under this
Agreement (x) that have been transitioned by the CBOT to a Person other than
LIFFE, or (y) that have been wound down or phased out; and (ii) in the event of
the CBOT's breach of any of its material obligations under this Agreement during
any Transition Period, LIFFE may terminate this Agreement immediately upon
notice to the CBOT.
14.4 Survival. The expiration or 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 expiration or 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 expiration or termination. Sections 5.2, 5.3.1(b), 5.3.1(c)(i),
5.3.1(d)(i), 5.3.3, 5.3.4, 5.3.5, 5.3.6.2, 6.4, 6.5, 7.2, 8, 9.4, 11, 14, 15,
16, 17, 18, 19, 20, 21, 22, 24, 27, 28, 29, 30, 31, 32 and 34 shall survive
beyond the effective date of termination or expiration of this Agreement and
shall remain in full force and effect.
15. Proprietary Rights
15.1 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 E of the Software License
Agreement), including but not limited to, all Software, Upgrades, and
Documentation; all Confidential Information of LIFFE; all Equipment; all
Replacements; the Core Network; the Marks; all other materials whatsoever
relating to the Licensed Technology and/or the Equipment and/or the Core Network
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
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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.
15.2 CBOT Property. Notwithstanding the foregoing Section 15.1, as between
the CBOT and LIFFE, all rights, title and interest in and to (a) the CBOT
Technology (if any); (b) Market Data; (c) Trade Data; (d) Standing Data; (e) all
Confidential Information of the CBOT; and (f) all copyrights, trademarks,
patents, trade secrets and other intellectual property inherent in the foregoing
or appurtenant thereto (collectively, the "CBOT 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.
16. Confidentiality
16.1 Confidential Information. Subject to Section 16.2, 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
Development 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.
16.2 Exclusions. Notwithstanding Section 16.1, 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
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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.
17. Warranties
17.1 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,
EQUIPMENT, CORE NETWORK, OR MARKS, 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.
17.2 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 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 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.
18. Indemnification
18.1 By LIFFE. LIFFE shall defend, indemnify and hold the CBOT and its
Affiliates, and the officers, directors, employees, agents, and representatives
of the CBOT and its Affiliates ("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 [**];
provided that (i)
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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.
18.2 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 Property or
LIFFE's use thereof; (d) the CBOT's use of the Licensed Technology, the
Equipment, the Core Network or the Marks in contravention of this Agreement; (e)
any violation by any Market Participant of the restrictions set forth in Section
5.3.4; (f) any Claim that the Services provided hereunder, the Equipment, the
Core Network 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; and (g) violation of the LIFFE Core Network
Acceptable Use Policy by the CBOT and/or any Market Participant, except that the
CBOT shall have no obligations in respect of this Section 18.2(a), (d) or (g)
with regard to any Claim to the extent such Claim is (i) based on a failure by
the CBOT or any Market Participant to comply with the LIFFE Core Network
Acceptable Use Policy and (ii) brought by (x) third party exchanges directly
using the Core Network or (y) third party members, independent software vendors
or quote vendors participating in such third party exchanges or the
Euronext.liffe Exchanges (as defined in the Software License Agreement) directly
using the Core Network; provided that (A) LIFFE shall take no action which
LIFFE, in its reasonable judgment, believes would be contrary to the CBOT's
interests relative to the Claim; (B) 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; (C) 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 (D) 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.
19. Liability
---------
19.1 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 or Core
Network and the interruption or corruption of any data or information stored,
used, generated or transmitted on or via any Licensed Technology or Equipment or
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Core Network) under this Agreement arising from (a) any defect in the Licensed
Technology, Equipment or Core Network 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.
19.2 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 16 OR ITS
WARRANTIES SET FORTH IN SECTION 17, 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.
19.3 Limitation of Liability. The cumulative liability of LIFFE under this
Agreement, the Software License Agreement and the Development Services
Agreement, during the respective terms of this Agreement, the Software License
Agreement and the Development Services Agreement, however arising, will not
exceed [**]; provided, however, that the limitations set forth in this Section
19.3 will not 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 16.
19.4 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.
20. Dispute Resolution
------------------
20.1 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
18, but including any disagreements as to indemnification rights hereunder). Any
Dispute between the Parties that (a) relates to Program Services or (b) relates
to Managed Services and has not been resolved by the Governance Committee in
accordance with Schedule C, 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
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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 20.1
is not available for any reason, the affected Party shall be entitled to appoint
an appropriate substitute.
20.2 Mediation. If the Parties cannot resolve any Dispute in accordance
with Section 20.1 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.
20.3 Arbitration. If a Dispute is not resolved in accordance with Section
20.2, 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 20.3 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.
20.3.1 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. 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.
20.3.2 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.
20.3.3 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,
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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.
20.3.4 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.
20.3.5 Punitive Damages. Without limiting any other remedies that may
be available under applicable law, the arbitrators shall have
no authority to award punitive damages.
20.3.6 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.
20.3.7 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.
20.3.8 Obligations. The commencement and pendency of an arbitration
under this Section 20.3 shall not relieve either of the Parties
of their respective obligations under this Agreement.
20.3.9 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 State of
Illinois, and the Parties expressly waive any causes of action
relating to any Dispute not brought within the period set forth
therein.
20.4 Limitations. Notwithstanding Sections 20.2 and 20.3, nothing herein
restricts the rights of either Party to seek judicial resolution and remedy of
(i) any Disputes, following compliance with Sections 20.2 and 20.3, 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 16 or Section 17.
21. Entire Agreement
This Agreement, together with the Software License Agreement and the
Development 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.
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22. 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.
23. Amendments
Except as expressly provided for herein, this Agreement may be amended only
by an instrument in writing signed by a duly authorized representative of each
Party.
24. 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).
25. 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 Chicago 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.
26. 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 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.
27. 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.
28. 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.
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29. 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.
30. 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
or to such other address or addresses as may hereafter be specified by notice
given by one Party to the other.
31. Announcements
Neither Party may refer to this Agreement in any publicity or advertising
materials without the other Party's prior written consent.
32. Interpretation
32.1 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.
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32.2 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.
33. 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.
34. 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 20, 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.
35. 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]
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IN WITNESS WHEREOF, the Parties have executed this Managed Services
Agreement as of May 13, 2003.
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:
----------------------------------------
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SCHEDULES
Schedule A - Service Targets, Service Thresholds and CBOT
Electronic Exchange Parameters for Managed Services
Schedule B - Software and Documentation
Schedule C - Managed Services and Maintenance Services Governance
Schedule D - Change Control Procedures
Schedule E - Master Summary Statement of Work
Schedule F - CBOT Acceptable Use and Harassment Policy
Schedule G - Call Management Procedures
Schedule H - Uplift to Equipment
Schedule I - LIFFE Core Network Acceptable Use Policy
Schedule J - CBOT Dependencies
Schedule K - LIFFE Security Policy
Schedule L - Trademark Usage Guidelines
Schedule M - Charges
Schedule N - LIFFE Travel/Expense Policy
Schedule O - Credits and Bonuses
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EXECUTION
SCHEDULE A
SERVICE TARGETS, SERVICE THRESHOLDS AND
CBOT ELECTRONIC EXCHANGE PARAMETERS FOR MANAGED SERVICES
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[** 29 pages **]
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EXECUTION
SCHEDULE B
SOFTWARE AND DOCUMENTATION
[** 4 pages **]
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EXECUTION
SCHEDULE C
MANAGED SERVICES AND MAINTENANCE SERVICES GOVERNANCE
----------------------------------------------------
1. Project Manager and Service Manager
1.1 Appointments. LIFFE shall appoint and inform the CBOT of the identity
of a service manager to oversee the Managed Services and the
Maintenance Services on a day-to-day basis ("LIFFE's Service
Manager"). The CBOT shall appoint and inform LIFFE of the identity of
CBOT's Project Manager. Each Party shall promptly notify the other
Party in writing of any substitutions or replacements of LIFFE's
Service Manager or CBOT's Project Manager, as applicable, and shall
take all reasonable steps to minimize any potentially adverse effects
of such changes.
1.2 Meetings. Following the end of each Service Period, LIFFE's Service
Manager and CBOT's Project Manager will meet in person and/or
conference telephonically, as the Parties may agree ("Service
Review"), at least once a month (i) to review the Managed Services and
the Maintenance Services and discuss the day-to-day operational issues
arising from the provision of such Services by LIFFE, including any
management or financial issues relating to the Managed Services or the
Maintenance Services, and Change Requests; and (ii) to compare (x) the
actual Managed Services provided during the Service Period immediately
preceding the date of the meeting to (y) the Service Targets for such
Service Period. LIFFE shall, in consultation with the CBOT, prepare
(a) a report regarding such comparison of the Managed Services to the
Service Targets (a "Service Report"); and (b) minutes of the Service
Review meeting.
1.3 Service Review. If the reviews conducted pursuant to Paragraph 1.2
above indicate either that (a) a Service Threshold or CBOT Electronic
Exchange Parameter in respect of one of the Managed Services was
exceeded during the relevant Service Period or (b) a Service Target
was not met during the Service Period, LIFFE's Service Manager will
initiate a further service review with CBOT's Project Manager to
establish an appropriate course of action in relation to the exceeded
Service Threshold and/or CBOT Electronic Exchange Parameter, and/or
missed Service Target. Such courses of action may include:
(i) Renegotiation of the relevant Service Threshold and/or Service
Target;
(ii) No action; or
(iii) Changes implemented by LIFFE and/or the CBOT.
1.4 Escalation. LIFFE's Service Manager and CBOT's Project Manager shall,
as promptly as reasonably practicable, escalate to the Governance
Committee any issues LIFFE's Service Manager and CBOT's Project
Manager are unable to resolve between them.
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1.5 Reports.
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(a) Service Reports. The Interim Service Reports and the Service
Reports shall be prepared by LIFFE, in consultation with the
CBOT, as set forth in accordance with Paragraph 1.2 above.
(b) Reports for Governance Committee. CBOT's Project Manager and
LIFFE's Service Manager shall work together to prepare reports
relating to (i) any issue requiring escalation to the Governance
Committee in accordance with Paragraph 1.4 above, and (ii) any
other matters the Parties wish to present to the Governance
Committee, including, for example, Market Participant issues
relating to the Managed Services or the Maintenance Services and
overviews of LIFFE's performance of the Managed Services (the
Interim Service Reports, the Service Reports, and such other
reports prepared pursuant to this Paragraph 1.5(b), collectively,
the "Reports").
2. The Governance Committee
2.1 Composition of Committee. In accordance with such terms as the Parties
agree upon, the Parties shall establish a "Governance Committee."
LIFFE's Service Manager and the CBOT's Project Manager shall co-chair
the Governance Committee. Constitution of the remaining members of the
Governance Committee shall be as agreed upon by the Parties.
2.2 Objectives. The objective of the Governance Committee is to act as a
forum for each Party to raise and address any operational issues that
may arise with respect to the Managed Services or the Maintenance
Services, including (a) issues that have not been resolved between
CBOT's Project Manager and LIFFE's Service Manager; (b) Change
Requests regarding the Managed Services or the Maintenance Services;
(c) Market Participant issues relating to the Managed Services or the
Maintenance Services; and (d) an overview of LIFFE's performance of
the Managed Services and the Maintenance Services.
2.3 Meetings. The Governance Committee shall meet in person and/or
conference telephonically, as the Parties may agree, at least monthly.
Meetings of the Governance Committee may be called upon reasonable
notice by either Party. The agenda for the monthly meetings shall
include the following:
(i) Managed Services performance levels during the preceding month
and, in particular, conformity with the Service Targets;
(ii) Progress of Change Requests regarding the Managed Services or
the Maintenance Services; and
(iii) Any relevant Market Participant issues arising during the
preceding month.
2.4 Reports. At any meeting of the Governance Committee, the Parties may
present (a) Change Requests under consideration pursuant to the Change
Control Procedures and (b) any Reports; provided that such Change
Requests and/or Reports have been distributed to each Governance
Committee member prior to such meeting.
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SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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EXECUTION
SCHEDULE D
CHANGE CONTROL PROCEDURES
-------------------------
1. OVERVIEW
The change control procedures set forth herein and diagrammed in chart form in
Appendix 1 to this Schedule D, shall be used whenever the CBOT or LIFFE has a
requirement to change any component of the Services.
The individual designated by LIFFE to handle the day-to-day management of Change
Requests and/or Summary Statements of Work on behalf of LIFFE ("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 D: (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, (v) the designated
priority of such change (i.e., high, normal or low) and (vi) 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, within twenty-four (24) hours of receipt
of the Change Request Form, acknowledge such receipt 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
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Project Manager will not proceed with further assessment of the change request
until and unless such additional information is obtained. If LIFFE's Project
Manager disagrees with the priority of the requested change designated on the
Change Request Form, LIFFE's Project Manager and CBOT's Project Manager shall
review and discuss the nature of the requested change and agree upon the
priority for such change.
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 and the portions of the Change Request Form
noted above have been completed, LIFFE's Project Manager will, within
(i) ten (10) Business Days, for a low priority change, (ii) four (4)
Business Days, for a normal priority change, or (iii) two (2) Business
Days, for a high priority change, thereafter 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.
[**]
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 (i) ten (10) Business Days, for a low priority
change, (ii) four (4) Business Days, for a normal priority change, or
(iii) two (2) Business Days, for a high priority change, thereafter
and shall use reasonable efforts to complete the initial assessment by
the agreed upon completion date.
(b) As applicable to the particular change request, LIFFE's Project
Manager will assess the change request and document:
. [**]
(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.
2.5 ACCEPTANCE OF INITIAL ASSESSMENT
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(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) an estimated schedule
for implementation of the change requested, and (ii) 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
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Manager, will review the completed detailed plan and determine
(i) whether to accept or 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 Parties 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.
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Appendix 1 to Schedule D
Input Change File CR if
Request process
exhausted
Assess
Change No
Request
Request Form
Correct
Initial Assessment File CR if
With an agreed process
completion date exhausted
No
Assessment
Accepted?
Yes
Detailed Plan File CR if
With an agreed process
completion date exhausted
No
Plan
Accepted?
Yes
Implement Solution File CR if
process
exhausted
No
Change
Accepted?
Dispatch
Invoice
On the CONFIDENTIAL INFORMATION REDACTED AND
agreed FILED SEPARATELY WITH THE SECURITIES AND
basis EXCHANGE COMMISSION. OMITTED PORTIONS
INDICATED BY [**].
Complete Change
Request D-5
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Appendix 2 to Schedule D
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
____ LIFFE 29 Jan 2003.]
____ CBOT
Priority of Change Requested:
____ high
____ normal
____ low
================================================================================
Description of Change
Continued on separate sheet - YES/NO
================================================================================
Reason for Requested Change
Continued on separate sheet - YES/NO
================================================================================
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================================================================================
Change Request Logged by LIFFE's Project Manager
Change Request Number Issued: __________
Date Number Issued:___/___/______
Date Request Received: / /
-------- --------- --------
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: ____________________
================================================================================
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: ___/___/______
================================================================================
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================================================================================
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: ___/___/______
================================================================================
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D-8
================================================================================
Change Request Agreed
[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: / /
--- --- ------
================================================================================
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EXECUTION
SCHEDULE E
MASTER SUMMARY STATEMENT OF WORK
--------------------------------
This Master Summary Statement of Work (this "SSOW"), dated as of the last
date signed below (the "SSOW Execution Date") is between 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").
This SSOW, including all Change Requests attached as Appendix A hereto,
shall be incorporated by reference into the Managed Services Agreement between
the Parties, dated as of May 1, 2003 (the "MSA"), and is subject to the terms
and conditions of the MSA. Unless otherwise indicated, capitalized terms used
but not otherwise defined herein shall have the meaning ascribed to them in the
MSA.
1. Definitions
-----------
If used in this SSOW, the following expressions shall mean, respectively:
"Accepted" means issuance by the CBOT of an Acceptance Certificate in
relation to the Software Change.
"Acceptance Criteria" means the criteria derived from the Software Change
Specifications that must be met by the Software Change 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 Paragraph 3.
"Acceptance Testing" shall have the meaning set forth in Paragraph 2.2(c).
"Catch Up Period" shall have the meaning set forth in Paragraph 2.3.2.
"CBOT Defect" shall have the meaning set forth in Paragraph 3.3.2.2.
"CBOT Deliverables" means any and all software, documentation, or other
deliverables required to be provided by the CBOT pursuant to this SSOW.
"CBOT Software" shall have the meaning set forth in Paragraph 3.1.
"Documentation" means any operating manuals, user instructions, technical
literature, and other documentation supplied by LIFFE to the CBOT for the
purposes of assisting the CBOT's use of and/or access to the Software
Change and incorporation of the Software Change into the Trading System.
"Evidence" means evidence of a defect in the Software Change, including the
date the defect is detected; the environment (test or production) in which
the defect occurred; the business impact
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of the defect; component or subsystem - with the version number in which
the 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 Paragraph 3.4, which certificate acknowledges that the
Software Change 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.
"Initial Acceptance Certificate" means a certificate issued by the CBOT in
accordance with Paragraph 3.3.3.
"Integration Testing" shall have the meaning set forth in Paragraph 2.2(d).
"Key Milestones" shall have the meaning set forth in Paragraph 2.3.1.
"Material Defect" means a defect which results in a failure of the key
functionality of the Software Change to materially conform to the Software
Change 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 Trading System, including the
Software Change, or failures with respect to which a viable workaround has
been identified.
"Milestones" shall have the meaning set forth in Paragraph 2.3. "MSA" shall
have the meaning set forth above.
"Program Services Deliverables" means any and all Software Change,
documentation, or other deliverables required to be provided by LIFFE
pursuant to this SSOW.
"Project Manager" means that individual responsible on behalf of LIFFE or
the CBOT, as applicable, for the day to day management of the Program
Services.
"Simulations" shall have the meaning set forth in Paragraph 2.2(e).
"Software Change Specifications" means any specifications for the Software
Change agreed upon by the Parties and set forth in Appendix A.
"SSOW" shall have the meaning set forth above.
"SSOW Effective Date" shall have the meaning set forth above.
"SSOW Go Live Date" means the earliest date, agreed by the Parties, upon
which any Software Change delivered by LIFFE under this SSOW is made
available for use in a real time live trading environment.
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"System Testing" shall have the meaning set forth in Paragraph 2.2(a).
"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 the performance of the
Software Change materially conforms to the Software Change 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.
2. Services
2.1 Overview. LIFFE shall use reasonable efforts to provide to the CBOT the
Program Services set forth in Change Request(s) attached as Appendix A, in
accordance with the terms of such Appendix A, this SSOW and the remaining
portions of the MSA. Any requests by either Party for material changes to the
nature or scope of the Program Services to be delivered under this SSOW must be
made in accordance with the Change Control Procedures. Appendix A shall (a) set
forth any Software Change Specifications; (b) specify any locations agreed upon
by the Parties to which such Software Change is to be delivered or at which it
is to be installed; and (c) specify the operating system(s) on which the
Software Change may be used.
2.2 Software Development Services. Unless otherwise specified in
Appendix A, the Program Services to be delivered under this SSOW shall include
the following:
(a) testing of the Software Change, prior to releasing such Software
Change to the CBOT for any Acceptance Testing to be conducted
under this SSOW, in order to ascertain whether the Software
Change materially conforms to any Software Change Specifications
("System Testing");
(b) physical delivery of the Software Change and any related
Documentation LIFFE has agreed to provide to, and installation of
the Software Change at such location(s) as may be agreed upon by
the Parties;
(c) assisting the CBOT with Acceptance Testing of the Software
Change, in accordance with the procedures set forth in Paragraph
3 ("Acceptance Testing");
(d) assisting the CBOT with testing whether individual and collective
components of CBOT Technology conform with the Software Change
(or any interface components thereof), and whether any interface
components of the Software Change perform in accordance with the
Software Change Specifications in accordance with the procedures
set forth in Paragraph 3 ("Integration Testing"); and
(e) assisting the CBOT with simulations of the CBOT Electronic
Exchange utilizing the Software Change ("Simulations").
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2.3 Milestones. Any milestones in respect of the Program Services agreed
upon by the Parties shall be set out in Appendix A (the "Milestones"). LIFFE
shall use reasonable efforts to meet any such Milestones, and shall have at its
disposal the resources necessary to meet such 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
applicable obligations under the MSA, including the CBOT's obligations under
Section 11 of the MSA and this SSOW; and (ii) may be affected by the CBOT's
initiation of a further Change Request resulting in modification of the nature
or scope of the Program Services and any reinstatement of the Program Services
following suspension of the Program Services pursuant to Section 10.5 of the
MSA.
2.3.1 Key Milestone Likely Not To Be Met. In the event that Appendix A
identifies any key Milestones pertaining to the Program Services
("Key Milestones") and LIFFE reasonably anticipates that any
such Key Milestones 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 Program 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.
2.3.2 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 Program
Services associated with such Key Milestone; and (b) the
Parties shall (i) continue to carry out any measures devised
in accordance with Paragraph 2.3.1 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 Program 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 Program Services associated with
the Key Milestone, [**] associated with the missed Key
Milestone during the period between the Key Milestone and
the date of completion of the Program 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 SSOW or other portions of
the MSA; and (y) if the services associated with the missed
Key Milestone are solely the responsibility of LIFFE, [**]
during the Catch Up Period. Once the Program Services
associated with the Key Milestone have been completed, LIFFE
shall notify the CBOT of the date of completion of such
Program Services.
2.3.3 [**]. In the event that any Key Milestone is not met, with
respect to Charges for all Program Services performed by LIFFE
during the Catch Up Period, the CBOT may, at its option and upon
written notice to LIFFE, [**], the Payment Date for such
Charges; provided, however, that no [**] pursuant to this
Paragraph
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2.3.3 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 SSOW or other applicable portions of
the MSA, including its obligations under Section 11 of the MSA.
Notwithstanding the foregoing, the Parties agree that, upon the
SSOW Go Live Date, all Program Services associated with Key
Milestones will be deemed to have been completed.
2.3.4 Disputes. In the event of any Dispute with respect to the
foregoing Paragraphs 2.3.1 to 2.3.3, the Parties shall address
such Dispute in accordance with Section 19 of the MSA.
2.4 Progress Reports. LIFFE shall provide the CBOT written reports
regarding the status of LIFFE's performance of the Program Services, at
intervals to be agreed upon by the Parties.
3. Acceptance Testing
------------------
3.1 System Testing. Acceptance testing shall not commence until (a) LIFFE
has notified the CBOT in writing that LIFFE has reasonably determined that the
Software Change materially conforms to the Software Change Specifications and
(b) the CBOT has notified LIFFE in writing that the CBOT has reasonably
determined that CBOT Deliverables comprising software (the "CBOT Software")
materially conforms to the CBOT's specifications for such CBOT Software and any
Interfaces specifications identified on Appendix A. 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 Change, and (ii) the CBOT shall endeavor to
provide LIFFE written notice of any modifications to the CBOT Software.
3.2 Preparation. Unless otherwise specified in Appendix A, 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 the Software Change, suitable to demonstrate that such Software Change can be
integrated with the Software (as defined in the MSA) and that the Software
Change materially conforms to the applicable portions of the Software Change
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.
3.3 Integration Testing.
--------------------
3.3.1 Notification. Unless otherwise specified in Appendix A,
commencing upon any relevant Milestone set forth in Appendix A
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 deem most
appropriate to facilitate acceptance testing and to meet any
relevant Milestones.
3.3.2 Suspected Defects.
------------------
3.3.2.1 Material Defects. If a Material Defect is suspected, (a)
the CBOT shall, immediately upon becoming aware of such
suspected Material Defect,
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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 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
repeated cycle (s) in the event that the need to repeat
such incur any Charges for Services in respect of such
cycle is due to LIFFE's failure to remedy the Material
Defect.
3.3.2.2 CBOT Defects. If Integration Testing reveals a defect in
the CBOT Software (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.
3.3.3 Initial Acceptance Certificate. Unless otherwise specified in
Appendix A, once all of the Software Change 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 Change. 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
Change and the CBOT Software available for trading in a real
time live trading environment, shall be made to the Software
Change or the CBOT Software prior to the SSOW Go Live Date,
without the written consent of the Parties.
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3.4 Simulations.
3.4.1 Notification. Unless otherwise specified in Appendix A,
following issuance of the Initial Acceptance Certificate and in
accordance with any relevant Milestone, the CBOT shall, with
LIFFE's reasonable assistance, carry out Simulations.
3.4.2 Suspected Defects.
3.4.2.1 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 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 Services in respect
of such repeated cycly(s) in the event that the need to
repeat such cycle is due to LIFFE's failure to remedy
the Material Defect.
3.4.2.2 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.
3.4.3 Final Acceptance Certificate. Unless otherwise specified
in Appendix A, once the Software Change 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 Change and the CBOT
Software available for trading in a real time live
trading environment, shall be made to the Software Change
or the
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CBOT Software prior to the SSOW Go Live Date, without
the written consent of the Parties.
3.5 SSOW Go Live Date. Notwithstanding any provision to the contrary
herein, unless otherwise specified in Appendix A, the Software Change 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 Paragraph 3.4.3.
3.6 Disputes. Any Dispute relating to Acceptance Testing shall be addressed
in accordance with the dispute resolution procedures set forth in Section 19 of
the MSA.
3.7 Acceptance. All Software Change that has been Accepted pursuant to the
terms of this SSOW shall be deemed "Software" within the meaning of the MSA.
4. CBOT's Dependencies
-------------------
In addition to all other obligations of the CBOT set forth in this SSOW and
other portions of the MSA, the CBOT shall comply with those dependencies set
forth in Appendix A.
5. Project Managers
----------------
5.1 Appointments. Each Party shall appoint and inform the other Party of
the identity of a Project Manager to serve as the primary points of contact
between LIFFE and the CBOT with respect to the Program Services to be delivered
under this SSOW.
5.2 Substitutions. Each Party shall promptly notify the other in writing of
any substitutions for or replacements of such individuals appointed in
accordance with Paragraph 5.1, as applicable, and shall take all reasonable
steps to minimize any potential adverse effects of such changes.
6. Charges
-------
In consideration for LIFFE's performance of the Program Services hereunder,
the CBOT shall pay to LIFFE the Program Services Charges, in accordance with
Section 10 and Schedule M of the MSA.
7. Term
----
The term of this SSOW will commence upon the SSOW Effective Date and will
continue until the (a) completion of the Program Services or (b) the expiration
or termination of the MSA, unless otherwise agreed by the Parties.
8. Proprietary Rights
------------------
In accordance with Section 14 of the MSA, as between the CBOT and LIFFE,
all rights, title and interest in and to all Program Services Deliverables and
other materials provided by LIFFE under this SSOW, including all copyrights,
trademarks, patents, trade secrets and other intellectual property inherent in
the foregoing or appurtenant thereto, shall be and remain vested in LIFFE (or
LIFFE's Affiliates, suppliers or licensors, as applicable).
[Remainder of page intentionally left blank.
Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Master Summary Statement
of Work as of the SSOW Effective Date.
LIFFE ADMINISTRATION AND MANAGEMENT, a
company incorporated in England and Wales
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
Date:
---------------------------------------
BOARD OF TRADE OF THE CITY OF CHICAGO, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
Date:
---------------------------------------
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Appendix A
[Change Request(s)]
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EXECUTION
SCHEDULE F
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).
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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
1. User Responsibilities The following requirements govern User
Responsibilities:
1.1 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.
1.2 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.
1.3 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.
2. Prohibited Uses Prohibited uses of CBOT Systems include but are not
limited to the following:
2.1 Users shall not attempt to access any data or programs contained on CBOT
Systems for which they do not have authorization.
2.2 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.
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2.3 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.
2.4 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.
2.5 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.
2.6 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.
2.7 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.
2.8 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.
2.9 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.
2.10 Users shall not download, install, or run security programs or utilities
which reveal weaknesses in the security of a system.
2.11 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.
2.12 Users shall not forward any attorney-client message from CBOT legal counsel
to anyone else without said counsel's authorization.
2.13 Users shall not transmit non-public information or attorney-client
communications via the Internet or other extranet connectivity.
3. Operational Data The following requirements govern Operational Data:
3.1 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.
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3.2 Users authorized to access operational data may not update, delete, or
modify any such data unless authorized by a Vice President or Department
Director.
3.3 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.
4. 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.
5. 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.
6. 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.
7. Monitoring The following requirements govern Monitoring:
7.1 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.
7.2 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.
8. Non-Compliance Disciplinary Actions The following requirements govern
Non-Compliance Disciplinary Actions:
8.1 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
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Systems. Serious violations will result in disciplinary action, including
termination of employment.
8.2 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.
60163707
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EXECUTION
SCHEDULE G
CALL MANAGEMENT PROCEDURES
1. CBOT's Call Management Obligations.
1.1 Market Participants. Upon receipt of each Call from a Market
Participant, the CBOT shall:
1.1.1 Assess whether the Call relates to LIFFE's delivery of the
Managed Services.
1.1.2 If the CBOT determines the Call relates to LIFFE's delivery of
the Managed Services:
[**]
1.1.3 If the CBOT determines the Call does not relate to LIFFE's
delivery of the Managed Services:
[**]
1.2 CBOT Personnel. In addition to performing the obligations set forth in
Paragraph 1.1, the CBOT shall:
[**]
2. LIFFE's Call Management Obligations.
2.1 Calls Routed by the CBOT. [**]
2.2 Direct Calls from Market Participants. [**]
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EXECUTION
SCHEDULE H
EQUIPMENT UPLIFT
[** 2 pages **]
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EXECUTION
SCHEDULE I
LIFFE CORE NETWORK ACCEPTABLE USE POLICY
1. Permitted Purpose
Except as otherwise agreed by LIFFE, those Persons authorized to use the
Core Network in relation to the CBOT Electronic Exchange ("Users") shall
use the Core Network solely for purposes of participating in, accessing or
obtaining information from the CBOT Electronic Exchange via an Interface
with the Equipment.
2. Compliance with Laws
Users shall use the Core Network in accordance with all applicable laws and
regulations and any additional reasonable requirements as LIFFE may deem
necessary to protect the Core Network. Without limiting the foregoing,
Users shall not use, transmit, distribute or store via the Core Network any
data, information or other material ("Data") which (i) infringes or
otherwise violates any copyright, trademark, trade secret or other
intellectual property of any individual or entity; (ii) is pornographic,
obscene, or exploitative of a minor; (iii) is menacing, malicious,
illegally threatening or defamatory; or (iv) violates export laws or
otherwise violates any applicable treaty, law or regulation.
3. Harmful Activities
Users shall not use the Core Network to transmit, distribute or store any
Data or undertake any other activities that may be harmful to or otherwise
interfere with (i) the Core Network or the use thereof by any other User or
other authorized user of the Core Network, or (ii) any system, network or
equipment of LIFFE or any third party, including: (i) intercepting or
attempting to intercept Data or other transmissions passing over the Core
Network; (ii) forwarding chain letters; (iii) sending multiple e-mails or
large transmissions that could reasonably be expected to annoy or harass or
to impose a disproportionately large load on, or degrade the functionality
of, the Core Network (e.g., "mail bombing"); (iv) sending any e-mail
containing misleading or incorrect headers or information rendering the
origin of the e-mail unclear or deceptive; (v) sending bulk or unsolicited
e-mail messages ("spamming"), either directly or by relaying; or (vi)
transmitting any virus, worm or Trojan Horse.
4. Security
4.1 Users shall not violate or attempt to violate the security of the Core
Network or interfere or attempt to interfere with LIFFE's systems, networks,
authentication measures, servers or equipment or with the use of or access
to the Core Network by any other User or any other authorized user of the
Core Network. Such prohibited activity includes (i) logging into a server
where access is not authorized; (ii) probing, scanning, or testing the
security or vulnerability of the Core Network or other networks; and (iii)
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attempting to gain access via the Core Network to any account or computer
resource not belonging to such User ("spoofing").
4.2 Users shall not monitor Data or traffic on the Core Network except via
a Trading Application or Interface.
5. Enforcement
Except as may be agreed between LIFFE and the CBOT, LIFFE shall have no
obligation to monitor or exercise control over any Data transmitted,
distributed or stored by any User via the Core Network. Notwithstanding the
foregoing, LIFFE reserves the right to monitor and control activities
undertaken via the Core Network.
6. Responsibility
Each User is fully responsible for all uses of the Core Network undertaken
(i) by such User or (ii) via such User's Trading Application or Interface.
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EXECUTION
SCHEDULE J
CBOT DEPENDENCIES
[** 3 pages **]
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EXECUTION
SCHEDULE K
LIFFE SECURITY POLICY
[**2 pages**]
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EXECUTION
SCHEDULE L
TRADEMARK USAGE GUIDELINES
LIFFE CONNECT(R) Logotype Standards
Contents
1 BASIC ELEMENTS..............................................................2
1.1 Logotype................................................................2
1.2 LIFFE CONNECT(R) colours................................................2
2 DESIGN GUIDELINES FOR PRINT.................................................3
2.1 Critical space..........................................................3
2.2 Colours.................................................................3
2.2.1 LIFFE CONNECT(R) Gold...............................................3
2.2.2 LIFFE CONNECT(R) Red................................................3
2.2.3 LIFFE CONNECT(R) Black..............................................3
2.3 Logotype backgrounds....................................................3
3 DESIGN GUIDELINES FOR THE WEB...............................................4
3.1 Critical space..........................................................4
3.2 Colours.................................................................4
3.2.1 LIFFE CONNECT(R) Gold...............................................4
3.2.2 LIFFE CONNECT(R) Red................................................4
3.2.3 LIFFE CONNECT(R) Black..............................................4
3.3 Logotype backgrounds....................................................4
3.4 Logo rendering..........................................................4
4 TEXT........................................................................5
(C) LIFFE 2002, 2003
All proprietary rights and interest in this publication shall be vested in LIFFE
Administration and Management ("LIFFE") and all other rights including, but
without limitation, patent, registered design, copyright, trademark, service
xxxx, connected with this publication shall also be vested in LIFFE. LIFFE
CONNECT(R) is a trademark of LIFFE Administration and Management. No part of
this publication may be redistributed or reproduced in any form or by any means
or used to make any derivative work (such as translation, transformation, or
adaptation) without written permission from LIFFE. LIFFE reserves the right to
revise this publication and to make changes in content from time to time without
obligation on the part of LIFFE to provide notification of such revision or
change.
LIFFE Administration and Management
Xxxxxx Bridge House . 0 Xxxxxx Xxxx . Xxxxxx XX0X 0XX . Xxxxxx Xxxxxxx
Telephone: x00 (0)00 0000 0000 Fax: x00 (0)00 0000 0000
xxxx://xxx.xxxxx.xxx/
Registered in England no 1591809
LIFFE Administration and Management is a part of the Euronext Group.
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
1 Basic elements
[LOGO OF LIFFE CONNECT(R)]
1.1 Logotype
The LIFFE CONNECT(R) logotype is legally protected and registered and must be
reproduced accurately. The logo has been specially drawn and must not be altered
or modified in any way. The logo must always be used horizontally and never at
an angle.
1.2 LIFFE CONNECT(R) colours
The LIFFE CONNECT(R) logo is made up of three colours: gold, red and black. They
are defined and specified below for print and web.
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
2 Design Guidelines for Print
2.1 Critical space
Space equivalent to the height of the main lettering of the logotype is to be
kept around all four sides of the logotype. This is a minimum and more should
always be given if possible.
2.2 Colours
2.2.1 LIFFE CONNECT/(R)/ Gold
[**]
2.2.2 LIFFE CONNECT/(R)/ Red
[**]
2.2.3 LIFFE CONNECT/(R)/ Black
Black
2.3 Logotype backgrounds
Wherever possible, the logotype should be reproduced in LIFFE CONNECT/(R)/ gold,
red and black.
In cases where only one colour reproduction of the logotype is possible it
should appear in single colour only using either LIFFE CONNECT/(R)/ gold, red,
black or white.
On single colour items the logotype may appear in the colour that the item is
printed.
When appearing out of a coloured background the logotype must appear reversed
'white out' or in one colour black.
On four colour items the pantone colours may be converted to the equivalent in
cmyk.
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
3 Design Guidelines for the Web
3.1 Critical space
Space equivalent to the height of the logotype L is to be kept around all four
sides of the logotype. This is a minimum and more should always be given if
possible.
3.2 Colours
3.2.1 LIFFE CONNECT/(R)/ Gold
[**]
3.2.2 LIFFE CONNECT/(R)/ Red
[**]
3.2.3 LIFFE CONNECT/(R)/ Black
[**]
3.3 Logotype backgrounds
Wherever possible, the logotype should be reproduced in LIFFE CONNECT/(R)/ gold,
red and black.
When appearing out of a coloured background the logotype must appear reversed
'white out' or in black.
3.4 Logo rendering
The LIFFE CONNECT/(R)/ logotype must be rendered in its entirety as an image. It
must never be generated client-side. When rendered the logotype should be clear,
clean and crisp. Overall dimensions should be to an exact number of pixels to
avoid excessive anti-aliasing.
If used in Flash animations the logotype should be imported as a vector image.
It should not be modified or distorted.
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
4 Text
LIFFE CONNECT/(R)/ should be written in capitals and with the trademark
registration symbol /((R))/ at all times.
For web sites, this only applies where LIFFE CONNECT/(R)/ appears in a heading
or as body text on a web page. It is not relevant for file names or directory
structures.
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
EXECUTION
SCHEDULE M
CHARGES
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[**7 pages**]
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
EXECUTION
SCHEDULE N
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 REDACTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
EXECUTION
SCHEDULE O
CREDITS AND BONUSES
[**3 pages**]
CONFIDENTIAL INFORMATION REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS INDICATED BY [**].
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Confidential Treatment Requested by CBOT Holdings, Inc.
Appendix 1 to Schedule 0
[**13 Sheets**]
Confidential Materials Omitted and Filed Separately with the Securities and
Exchange Commission pursuant to a Request for Confidential
Treatment. Asterisks Denote Omissions.
