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EXHIBIT 10.20
OPTIMARK TECHNOLOGIES INC.
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
This Information Technology Services Agreement ("Agreement"),
dated as of May 6, 1999, is by and between OptiMark Technologies Inc., a
corporation having a place of business at 10 Exchange Place, 12th floor, Jersey
City, New Jersey, USA 07302 ("OTI"), and IBM Canada Limited, having its
headquarters at 3600 Steeles Avenue East, Markham, Ontario L3R 9Z7 ("IBM"). OTI
and IBM agree that the following terms and conditions will apply to services
provided by IBM under this Agreement. OTI and IBM may be referred to
individually as a "Party" and collectively as the "Parties".
* This confidential portion has been omitted and filed separately with the
Commission.
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Table of Contents
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1.0 Background and Objectives...........................................................1
2.0 Definitions, Documents and Term.....................................................1
2.1 General Definitions..........................................................1
2.2 Associated Contract Documents................................................4
2.3 Term.........................................................................4
2.4 Renewal and Expiration.......................................................4
3.0 Overview............................................................................4
3.1 Start-up of Services.........................................................4
3.2 Contracts....................................................................5
3.3 Software.....................................................................5
3.4 Required Consents............................................................5
3.5 Other Obligations............................................................5
3.6 Software Currency............................................................5
4.0 IBM Responsibilities................................................................6
4.1 IBM Personnel................................................................6
4.2 Standards....................................................................7
4.3 Efficient Use of Resources...................................................7
4.4 Technological Advancements...................................................8
4.5 Management and Control.......................................................8
4.6 Machines.....................................................................9
4.7 Software Services...........................................................10
4.8 Operations, Support and Maintenance.........................................10
4.9 Consolidation and Relocation Services.......................................11
4.10 Systems Management..........................................................11
4.11 Disaster Recovery...........................................................11
4.12 Production Services.........................................................11
4.13 Help Desk/Customer Support Centre...........................................12
4.14 Audits......................................................................12
4.15 Access to IBM Data Center...................................................13
5.0 OTI Responsibilities...............................................................13
5.1 Project Executive...........................................................13
5.2 Applications Software.......................................................13
5.3 Support Services............................................................13
5.4 Other Responsibilities......................................................13
5.5 Approvals and Notification..................................................14
5.6 OTI's Failure to Perform OTI Responsibilities...............................14
6.0 Charges and Expenses...............................................................15
6.1 Monthly Services Charge.....................................................15
6.2 New Entities................................................................15
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6.3 New Services................................................................15
6.4 Taxes.......................................................................16
6.5 Extraordinary Reduction of OTI Work.........................................16
6.6 Services Transfer Assistance................................................17
6.7 Other Expenses and Charges..................................................19
6.8 Option to Purchase or Lease.................................................19
7.0 Invoicing and Payment..............................................................19
7.1 Monthly Services Charge Invoices............................................19
7.2 Other Charges...............................................................19
7.3 Invoice Payment.............................................................19
7.4 Proration...................................................................20
7.5 Other Credits...............................................................20
8.0 Intellectual Property Rights.......................................................20
8.1 Intellectual Property Definitions...........................................20
8.2 IBM Developed Materials.....................................................21
8.3 OTI Developed Materials.....................................................22
8.4 General Rights..............................................................22
9.0 Confidentiality....................................................................23
10.0 Termination........................................................................23
10.1 Termination for Convenience.................................................23
10.2 Termination for Cause.......................................................24
10.3 Termination for OTI's failure to pay........................................24
10.4 Termination for Act of Insolvency...........................................25
10.5 Extension of Services.......................................................25
10.6 Other Rights Upon Termination or Expiration.................................26
11.0 Liability..........................................................................26
11.1 General Intent..............................................................26
11.2 Damages.....................................................................27
11.3 Loss of Data................................................................28
12.0 Warranty...........................................................................28
12.1 Representations and Warranties..............................................28
12.2 Compliance with Obligations.................................................28
12.3 Year 2000...................................................................28
12.4 Disclaimers.................................................................30
12.5 Authorization and Enforceability............................................30
12.6 Regulatory and Corporate Proceedings........................................31
13.0 Indemnities........................................................................31
13.1 Indemnity by IBM............................................................31
13.2 Indemnity by OTI............................................................31
13.3 Cross Indemnity and Contribution............................................32
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13.4 Indemnification Procedures..................................................33
13.5 Subrogation.................................................................34
13.6 Exclusive Remedy............................................................34
14.0 Insurance and Risk of Loss.........................................................34
14.1 Insurance...................................................................34
14.2 Risk of Loss................................................................34
15.0 Publicity..........................................................................34
16.0 Review Committees/Dispute Resolution...............................................35
16.1 Joint Advisory Committee....................................................35
16.2 Dispute Resolution..........................................................35
16.3 Continued Performance.......................................................37
17.0 General............................................................................37
17.1 Control of Services.........................................................37
17.2 Right to Perform Services for Others........................................37
17.3 Geographic Scope of Services and Currency...................................38
17.4 Amendments and Revisions....................................................38
17.5 Force Majeure...............................................................38
17.6 Nonperformance..............................................................39
17.7 Remarketing.................................................................39
17.8 Waiver......................................................................39
17.9 Severability................................................................40
17.10 Limitations Period..........................................................40
17.11 Counterparts................................................................40
17.12 Governing Law...............................................................40
17.13 Survival, Binding Nature and Assignment.....................................40
17.14 Notices.....................................................................41
17.15 No Third-Party Beneficiaries................................................42
17.16 Other Documents.............................................................42
17.17 Headings....................................................................42
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Table of Schedules
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Schedule Title
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A Applications Software
B Systems Software
C OTI Machines
D Services Machines
E Support Services and Service Levels
F Contracts
G Reserved
H Reserved
I Lan
J IBM Charges, Measures of Utilization and Financial
Responsibilities
K Operating Environment Standards
L Security
M Help Desk
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1.0 BACKGROUND AND OBJECTIVES
OTI desires that certain OTI information systems activities and
responsibilities be performed and managed by IBM.
After careful evaluation of IBM's proposals and other
alternatives, OTI agrees to purchase from IBM the Services during the Term. This
Agreement documents the terms and conditions under which OTI agrees to purchase
and IBM agrees to provide such Services.
2.0 DEFINITIONS, DOCUMENTS AND TERM
2.1 General Definitions
As used in this Agreement:
a. "Act of Insolvency" with respect to a Party means, (i) a
general assignment for the benefit of creditors; (ii) any
proceeding instituted by the Party seeking general relief as
debtor, or to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding-up, reorganization, arrangement
or composition of it or its debts or for an order for similar
relief under any law relating to bankruptcy, insolvency or
relief of debtors or seeking appointment of a receiver,
trustee or other similar official for the Party or for any
substantial part of its assets; (iii) any proceedings are
instituted against the Party seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding-up,
reorganization, arrangement or composition of it or its debts
or an order for similar relief under any law relating to
bankruptcy, insolvency or relief of debtors or seeking
appointment of a receiver, trustee or other similar official
for the Party or for any substantial part of its assets unless
the proceeding is being contested actively and diligently in
good faith by appropriate and timely legal proceedings and is
dismissed, vacated or stayed within 30 days of institution,
which 30 days shall be extended to 90 days where the Party
demonstrates to the reasonable satisfaction of the other Party
that it is contesting such appointment in good faith; (iv) the
appointment of a receiver, receiver and manager or other
similar official with respect to any of the assets of a Party
by a court or creditor if such appointment is not terminated
within 30 days; (v) becomes bankrupt or insolvent within the
meaning set out in the Bankruptcy and Insolvency Act (Canada)
or equivalent applicable legislation; (vi) is subject to any
distress or execution levied on its rights under this
Agreement; or (vii) ceases or threatens to cease to carry on
business.
b. "Affiliate" means, with respect to a Party, any entity
1. a majority of whose voting shares or securities
are; or
2. which does not have voting shares or securities,
but a majority of the ownership interest
representing the right to make decisions for such
entity is;
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now or hereafter, owned or controlled, directly or indirectly
by that Party, but such entity shall be deemed to be an
Affiliate only so long as such ownership or control exists.
c. "Applications Software" means those programs and programming,
including all supporting documentation and media, that perform
specific OTI related data processing and telecommunication
tasks.
d. "Assumption Date" means the date, to be agreed by the Parties,
as of which IBM assumes administrative responsibility for
Contracts.
e. "Commencement Date" means December 1, 1997.
f. "Confidential Information" has the meaning set out in the
Confidentiality Agreement.
g. "Confidentiality Agreement" means the agreement between the
Parties for the exchange of confidential information dated as
of May 29, 1998.
h. "Contracts" means those written contractual arrangements under
which OTI received third-party services prior to the
Assumption Date for which IBM has undertaken administrative
responsibility, to the extent indicated in Schedule E, as of
the Assumption Date. Contracts are listed in Schedule F.
i. "Control" means the legal, beneficial or equitable ownership,
directly or indirectly, of more than 50 percent of the
aggregate of all voting equity interests in such entity.
j. "End Users" means the representatives of OTI at the OptiMark
Information Center, as described in Schedules E and M.
k. "Holidays" means any day on which OTI does not require the
Services in order to deliver services to OTI's customers. OTI
will provide IBM with a list of such days from time to time.
l. "IBM Data Center" means the Machines and Software to be
located at 245 Consumers Road, Toronto, Ontario, as of the
Commencement Date and/or at such other locations as IBM may
establish thereafter.
m. "Lan or Local Area Network" means the physical infrastructure
that interconnects the communications components listed in
Schedule I, within the IBM Data Center.
n. "Leases" means written contractual arrangements under which
OTI received the right to use OTI Machines.
o. "Licenses" means those written contractual arrangements under
which OTI received the right to use, and the maintenance for,
Software.
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p. "Losses" means all losses, liabilities, damages and claims
(including taxes), causes of action, and all related costs and
expenses (including any and all reasonable legal fees and
reasonable costs of investigation, litigation, settlement,
judgment, interest and penalties).
q. "Machines" means both OTI Machines and Services Machines.
r. "Monthly Services Charge" means the charge to OTI for IBM's
provision of the Services as set forth in Schedule J.
s. "OptiMark Proprietary Element(s)" means those computer
software elements in code and design that relate to any
proprietary aspect of the OptiMark Proprietary Trading
Systems, including without limitation, any element relating to
satisfaction density or other trading profiles or message
elements related to such satisfaction density or other trading
profiles.
t. "OptiMark Proprietary Trading Systems" means systems that OTI
develops to implement its proprietary technology for trading
securities in the OptiMark Securities Trading Field.
u. "OptiMark Securities Trading Field" means the field of
financial services relating to the trading of securities by
the matching of trading orders using satisfaction density
profiles and the like.
v. "OTI Machines" means Machines within the Data Center and Lan
that are owned, leased or rented and retained by OTI after the
Commencement Date and that are used by IBM so that IBM may
provide the Services. OTI Machines are listed in Schedule C.
w. "Non-prime Time" means the hours from 5:00 p.m. to 8:00 a.m.
local time where the IBM Data Center is located, Monday
through Friday, and from Friday at 5:00 p.m. through Monday at
8:00 a.m., including Holidays.
x. "Prime Time" means the hours from 8:00 a.m. to 5:00 p.m. local
time where the IBM Data Center is located, Monday through
Friday, including Holidays.
y. "Required Consents" means any consents or approvals required
for the licensing or transfer of the right to use applicable
Leases, Licenses, Contracts or third-party services or
products to IBM, which IBM may need in the provision of
Services.
z. "Service Levels" means the service delivery criteria for the
specified Services, to be agreed to by OTI and IBM during the
Measurement Period, and included in Schedule E.
aa. "Services" means those services and functions which IBM
agrees to provide to OTI pursuant to this Agreement.
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bb. "Services Machines" means Machines within the IBM Data Center
and Lan which are either provided or used by IBM on or after
the Commencement Date in order to meet its obligations under
this Agreement.
cc. "Software" means both Applications Software and Systems
Software.
dd. "Systems Software" means those programs and programming,
including all supporting documentation and media, that perform
tasks basic to the functioning of the data processing and
required to operate the Applications Software or otherwise
support the provision of Services by IBM. Systems Software is
listed in Schedule B.
2.2 ASSOCIATED CONTRACT DOCUMENTS
This Agreement also includes Schedules A through M which will be
updated by the Parties as necessary or appropriate during the Term.
2.3 TERM
The term of this Agreement will begin as of 12:01 a.m. on the
Commencement Date and will end as of 12:00 midnight on March 31, 2003 (the
"Term"), unless earlier terminated or extended in accordance with this
Agreement.
2.4 RENEWAL AND EXPIRATION
IBM agrees to notify OTI whether it desires to renew this
Agreement and of the proposed prices, terms and conditions to govern such
renewal not less than 12 months prior to the expiration of the Term. If IBM
notifies OTI that it desires to renew this Agreement, OTI agrees to inform IBM
in writing whether it desires to renew this Agreement not less than nine months
prior to the expiration of the Term.
If OTI notifies IBM that it desires to renew the Agreement, but
the Parties are unable to agree upon renewal prices, terms and conditions as of
six months prior to the expiration of the Term, this Agreement will be extended
for one year at the then current prices, terms and conditions (the "Extension
Period"). If the Parties are unable to reach agreement upon renewal prices,
terms and conditions during the Extension Period, this Agreement will expire at
the end of the Extension Period.
3.0 OVERVIEW
3.1 START-UP OF SERVICES
There will be a phase-in period ("Transition Period") beginning
on January 1, 1998 and ending on November 30, 1998. The Transition Period may be
extended by mutual agreement of the Parties. Following the Transition Period,
there will be a Measurement Period during which IBM will be responsible for
providing the Services and OTI and IBM will measure performance of the Services
against the preliminary service goals as set out in Schedule E. OTI
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and IBM will work together during the Measurement Period to validate the
preliminary service goals and establish the Service Levels to be included in
Schedule E, validate and update any information that is reflected in or omitted
from the Agreement and assess the need for changes or additions to the Services.
As agreed by OTI and IBM, there shall be equitable adjustments to the Monthly
Services Charge and any other affected provision(s) of the Agreement and
Schedules shall be amended. If the parties are unable to reach agreement on the
amendments, then the Parties will submit the matter to the Joint Advisory
Committee for dispute resolution as specified in Section 16 of this Agreement.
3.2 CONTRACTS
Subject to Section 3.4, IBM shall have administrative
responsibility during the Term, as of and from the Assumption Date, for the
Contracts listed in Schedule F, in accordance with the responsibilities
indicated in Schedule E. IBM shall be responsible for the performance of those
obligations of OTI under the Contracts which fall within IBM's responsibilities
as set out in Schedule E, to the extent that such obligations were disclosed to
IBM on or before the Assumption Date through receipt by IBM of a copy of the
relevant documents, including, but not limited to, the applicable Contracts.
3.3 SOFTWARE
As of the Commencement Date, OTI will make the Software (other
than that Software listed in Schedule B -section B.1) available to IBM for the
purpose of providing the Services. Subject to Section 3.4, IBM will comply with
OTI's obligations of nondisclosure, under any such Systems Software License to
the extent such obligations were disclosed to IBM on or before the Commencement
Date through receipt by IBM of a copy of the relevant documents.
3.4 REQUIRED CONSENTS
While IBM and OTI will work cooperatively to obtain any Required
Consents, OTI shall have the ultimate responsibility for obtaining all Required
Consents and OTI shall bear the costs, if any, of obtaining all Required
Consents. IBM will use reasonable efforts to assist OTI in obtaining the
Required Consents.
3.5 OTHER OBLIGATIONS
As of the Assumption Date, OTI will not enter into any new, or
amend any existing, agreements or arrangements, written or oral, affecting or
impacting upon the Contracts referred to in Section 3.2 above, as specified in
the various Schedules to this Agreement, without the prior written consent of
IBM. IBM's consent shall not be unreasonably withheld, it being understood and
agreed that such consent may be subject to agreement by the Parties to the
amendment of any affected provision of this Agreement.
3.6 SOFTWARE CURRENCY
IBM agrees to maintain reasonable currency for releases and
versions of Software for which IBM is responsible, unless otherwise mutually
agreed. For the purposes of this
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Section, reasonable currency shall mean that the new release or version is
installed no later than 12 months after the date the licensor makes such release
or version commercially available.
At OTI's request, IBM will review and assess the accelerated
introduction of new releases and versions of Software for which IBM is
responsible. IBM will introduce such Software as soon as is reasonably
practicable, it being understood the introduction is subject to the Parties
having first mutually agreed that such introduction will not adversely affect
either the IBM Data Center common infrastructure or the Service Levels under
this Agreement. Any additional costs shall be payable by OTI and shall be
invoiced to OTI pursuant to Section 6.7. In the event either Party requests the
other Party to delay upgrading specific Software or requires operation and
maintenance of multiple versions of Software, the other Party shall do so,
provided, that if such Party:
a. is prevented from taking economic or performance advantage
of technological advancements in the industry; or
b. incurs additional costs (e.g., software-support costs due
to withdrawal of maintenance by the licensor, multiple-version charges,
etc.),
then the requesting Party will either update the Software to the current level
or reimburse the other Party for any reasonable increased costs which the other
Party can demonstrate it has incurred (or will incur on an on-going basis) as a
result thereof.
In addition, in the case where OTI is the requesting Party, OTI
shall relieve IBM from any related Service Levels until such time as the
affected Software is deemed reasonably current.
4.0 IBM RESPONSIBILITIES
4.1 IBM PERSONNEL
IBM will designate, prior to the Commencement Date, an IBM
project executive to whom all OTI's communications may be addressed and who has
the authority to act for and bind IBM and its subcontractors in connection with
all aspects of this Agreement (the "IBM Project Executive").
a. IBM shall cause the person assigned to the position of IBM
Project Executive to devote appropriate time and effort to the provision
of the Services under this Agreement. Before assigning an individual to
the position of IBM Project Executive, whether the individual is
initially assigned or is subsequently assigned, IBM shall:
1. notify OTI of the proposed assignment;
2. introduce the individual to appropriate OTI
representatives; and
3. consistent with IBM's personnel practices, provide OTI
with any other information about the individual reasonably
requested by OTI.
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IBM agrees to discuss with OTI any reasonable and lawful
objections OTI may have to such assignment and attempt to resolve such
concerns on a mutually agreeable basis.
b. Except in the event the IBM Project Executive terminates
his/her employment with IBM, dies, becomes disabled or breaches IBM
company policy, IBM will give OTI at least 30 days' notice prior to
assigning a new IBM Project Executive and will discuss with OTI any
reasonable and lawful objections OTI may have to such assignment.
c. In the event that OTI reasonably and in good faith determines
that it is not in the best interests of OTI for any IBM employee or
subcontractor to continue performing any of the Services, then OTI shall
give IBM written notice specifying the reasons for its position and
requesting that the employee or subcontractor be replaced. Promptly
after its receipt of such a notice, IBM shall investigate the matters
stated in such notice and, if it determines that OTI's concerns are
reasonable, IBM shall take appropriate action.
d. During the Term, OTI shall not solicit the services of any
employee of IBM or its Affiliates who is dedicated primarily to the
provision of the Services, without the prior written consent of IBM.
4.2 STANDARDS
IBM agrees that:
a. all Services performed by IBM for OTI will be performed in
a workerlike manner; and
b. its performance of the Services will meet or exceed each
of the applicable Service Levels.
4.3 EFFICIENT USE OF RESOURCES
IBM shall take reasonable action, taking into account economic
circumstances, to efficiently use resources that will be chargeable to OTI under
this Agreement, including, but not limited to:
a. making schedule adjustments;
b. delaying the performance of noncritical functions within
established limits; and
c. tuning or optimizing the systems used to perform the
Services, consistent always with OTI's priorities and schedules for the
Services and IBM's obligation to meet the Service Levels.
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4.4 TECHNOLOGICAL ADVANCEMENTS
Subject to the Change Management Procedures, IBM may, at IBM's
option and expense, implement technological advancements relative to the
provision of the Services so long as IBM continues to perform the Services in
accordance with the Service Levels set forth in this Agreement.
4.5 MANAGEMENT AND CONTROL
a. By December 31, 1998, IBM shall provide a manual
describing the operating processes and procedures relating to the
performance of the Services (the "Procedures Manual").
1. The Procedures Manual shall be provided to OTI for review
and comment, and IBM shall incorporate therein any
reasonable comments or suggestions of OTI.
2. IBM shall periodically update the Procedures Manual to
describe any changes in the operations or procedures
described therein.
3. IBM shall perform all Services in accordance with the
Procedures Manual.
b. By December 31, 1998, IBM shall provide the "Change Management
Procedures" which will specify, at a minimum, that:
1. IBM will make no change which may have a material adverse
affect on the business operations of OTI without first
obtaining approval from OTI.
2. IBM will schedule change activities so as not to interrupt
OTI business operations.
3. IBM will prepare monthly, a rolling quarterly look-ahead
schedule for ongoing and planned changes materially
affecting OTI's business operating environment. The status
of such changes will be monitored and tracked against the
applicable schedule.
4. IBM will document and provide to OTI a notification of all
changes materially affecting OTI's business operating
environment performed for emergency purposes or as
otherwise not precluded in Section 4.5.b(1) as soon as
practicable, but in no event later than five business days
after the change was made.
The Change Management Procedures will be included in the Procedures
Manual and shall be provided to OTI for review and comment, and any
reasonable comments or suggestions of OTI will be incorporated therein.
c. By December 31, 1998, IBM will begin providing a set of
periodic reports to OTI. At a minimum, these reports will include the
following:
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1. a monthly performance report documenting IBM's performance
with respect to the Service Levels;
2. a monthly change activities schedule report containing the
information described in Section 4.5.b(4);
3. a monthly change report setting forth a record of all
changes materially affecting OTI's business operating
environment performed during the previous month;
4. a monthly report comparing the system resource thresholds
established by OTI with the actual system usage; and
5. such other reports as are mutually agreed by the Parties.
IBM will provide OTI with such documentation and other information as
may be reasonably requested by OTI from time to time in order to verify
the accuracy of the reports specified above.
d. By September 15, 1998, the Parties will mutually determine
an appropriate set of periodic meetings to be held between
representatives of OTI and IBM. At a minimum, the Parties will hold the
following meetings:
1. a weekly meeting among operational personnel to discuss
ongoing issues relating generally to daily performance and
planned or anticipated activities and changes;
2. a monthly management meeting to review the performance
report, the change activities schedule report, the change
report, and such other matters as appropriate;
3. a semi-annual senior management meeting to review relevant
contract and performance issues; and
4. at intervals to be mutually agreed, meetings to review
OTI's workload forecasts and to discuss IBM's capacity
planning and recommendations based on such forecasts.
All meetings will have a published agenda issued by IBM sufficiently in
advance of the meeting to allow meeting participants a reasonable
opportunity to prepare for the meeting.
4.6 MACHINES
IBM will provide the Services using Services Machines and OTI
Machines. Without prejudice to any other separate agreements between the
Parties, IBM and OTI acknowledge and agree that OTI, as prime systems
integrator, has established the specifications and configuration for the
Machines and has selected the Machines to meet OTI's workload
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estimates and capacity requirements. Consequently, IBM is not responsible for
the adequacy or suitability of the Services Machines to meet OTI's requirements
or to deliver the Services. From time to time, IBM and OTI may agree to IBM
providing additional Machines or replacement Machines, including upgrades; such
changes or additions will be addressed through the provisions of Section 6.3.
IBM retains all right, title and interest in and to all Services Machines (other
than OTI Machines), subject to Section 10.5 with respect to OTI's rights upon
termination or expiration of this Agreement.
4.7 SOFTWARE SERVICES
IBM will:
a. operate, maintain and enhance, as necessary to perform in
accordance with the Service Levels, the Systems Software;
b. apply preventive maintenance and program temporary fixes
to correct defects in the Systems Software;
c. provide or obtain new versions and releases, upgrades,
replacements or additional Systems Software in accordance with this
Agreement and Schedule F; and
d. run the Applications Software on the Systems Software
platform.
4.8 OPERATIONS, SUPPORT AND MAINTENANCE
IBM will:
a. operate the IBM Data Center using the Machines and
Software;
b. operate the Data Network using the Machines and Software;
c. provide maintenance services for Machines, in accordance
with and subject to the maintenance Contracts and other third-party
maintenance agreements;
d. store, maintain and control storage media (tapes, disk
packs, etc.) provided by IBM at OTI's expense;
e. support, as provided in Schedule E, the Data Network by
operating a control center which will provide alarm monitoring,
first-level trouble analysis, and problem recording; place service calls
to vendors to perform corrective maintenance; and manage problems to
closure (the "Network Control Center" or "NCC");
f. deliver output to the designated drop location for OTI's
distribution or transmit electronic print files to remote sites in
accordance with Schedule E; and
g. monitor system capacity to support OTI application
development and testing, in accordance with Schedule E and this
Agreement.
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4.9 CONSOLIDATION AND RELOCATION SERVICES
IBM will install, rearrange and relocate Machines within the Data
Center as IBM deems necessary in order to perform in accordance with the Service
Levels (subject to OTI's reasonable concurrence as prime systems integrator).
4.10 SYSTEMS MANAGEMENT
IBM will:
a. perform capacity planning (in conjunction with OTI and in
response to OTI workload forecasts), performance analysis and tuning for
the Machines and Systems Software to the extent required to meet the
Service Levels in accordance with Schedule E;
b. create and maintain a configuration diagram of the Lan as
set out in Schedule I;
c. implement controls to effectively manage the operating
environments, including change management and problem management
according to the Procedures Manual;
d. provide back-up and restore capability for data and
programs maintained in the IBM Data Center at the frequency specified by
OTI; and
e. provide for systems access security through the use of
appropriate security products in accordance with Schedule L.
4.11 DISASTER RECOVERY
IBM is not providing any offsite disaster recovery services under
this Agreement. IBM will cooperate with OTI and with any disaster recovery
vendor selected by OTI. Any additional services to be provided by IBM shall be
subject to Section 6.3 of this Agreement.
4.12 PRODUCTION SERVICES
IBM will:
a. schedule, control and monitor the running of production
jobs in the IBM Data Center using scheduling and quality control
procedures, as specified in the Procedures Manual which shall be based
on OTI's pre-defined schedules; and
b. follow procedures for scheduling and directing output of
all production work (including workload and performance balancing), as
specified in the Procedures Manual and as agreed between IBM and OTI.
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4.13 HELP DESK/CUSTOMER SUPPORT CENTRE
IBM will provide initial, single-point-of-contact support to End
Users to assist them with problem determination, tracking and closure, systems
status, requests and changes which may affect them, in accordance with Schedules
E and M.
4.14 AUDITS
IBM will provide reasonable assistance to OTI in meeting its
audit and regulatory requirements, including providing access to the IBM Data
Center and other IBM locations used exclusively to provide the Services to
enable OTI and its mutually acceptable third-party auditors and examiners to
conduct appropriate audits and examinations of the operations of IBM relating to
the performance of the Services to verify:
a. the accuracy of IBM's charges to OTI;
b. that IBM is exercising reasonable procedures to control
the resources provided by OTI to IBM (such as heat, light and utilities
utilized in providing Services to OTI); and
c. that Services are being provided in accordance with the
Service Levels.
Such assistance requires 72-hour notice to IBM except where
shorter notice is the result of statutory or regulatory audit requirements
imposed on OTI. Access will be provided during business hours on any reasonable
basis and subject always to IBM's and OTI's security requirements. To the extent
that any audit interferes with IBM's ability to perform the Services in
accordance with the Service Levels, IBM shall be relieved of its obligations
with respect to any affected Service Level. Provided such audits are requested
no more than once each calendar year, such assistance shall be provided at no
charge to OTI. IBM will provide access only to information reasonably necessary
to perform the audit. IBM shall not allow OTI, its auditors or examiners access
to other IBM or IBM customers' locations or IBM's or IBM customers' proprietary
data. IBM will also assist OTI's employees or auditors in testing OTI's data
files and programs, including, without limitation, installing and running audit
software, subject to the provisions of Section 6.
Subject to Section 6.3, IBM agrees to make any changes and take
other actions which are necessary in order for IBM to maintain compliance with
Canadian laws or regulations. Where OTI requires additional Services as a result
of OTI's legal compliance requirements, such Service shall be provided by IBM
pursuant to Section 6.3. OTI may submit additional findings or recommendations
to IBM for its consideration, and IBM shall consider such findings.
If any audit or examination reveals that IBM's invoices for the
Services for the audited period are not correct for such period, IBM shall
promptly reimburse OTI for the amount of any overcharges, or OTI shall promptly
pay IBM for the amount of any undercharges.
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4.15 ACCESS TO IBM DATA CENTER
Subject to compliance with all of IBM's security, data center
procedures and confidentiality requirements and reasonable prior notice to IBM
of the purpose of the access and of the persons to be given access, IBM shall
provide reasonable access to the environment in which the Applications Software
is running, subject to IBM supervision.
5.0 OTI RESPONSIBILITIES
5.1 PROJECT EXECUTIVE
OTI agrees to designate, prior to the Commencement Date, a
project executive to whom all IBM communications may be addressed and who has
the authority to act for and bind OTI and its subcontractors in connection with
all aspects of this Agreement (the "OTI Project Executive").
5.2 APPLICATIONS SOFTWARE
During the Term, OTI will be responsible for selecting or
defining requirements for all Applications Software. IBM agrees to operate the
Applications Software selected by OTI, provided such Applications Software
conforms to the Operating Environment specified in Schedule K. OTI will also
retain responsibility for maintenance, support and all license and related
charges for Applications Software.
OTI will be responsible to audit, control and approve new
Applications Software prior to its promotion into production.
5.3 SUPPORT SERVICES
OTI agrees to:
a. perform its responsibilities in accordance with the
Procedures Manual and the Service Levels set forth in Schedule E and
until such time as those documents are completed, in whole or in part,
in accordance with OTI's practices and policies as of the Commencement
Date; and
b. provide to IBM, to the extent not otherwise sold, assigned
or licensed to IBM, for the purposes of meeting IBM's obligations under
this Agreement, full access to, and use of, Machines and Software on the
terms and conditions set forth in this Agreement.
5.4 OTHER RESPONSIBILITIES
OTI also agrees to:
a provide data, data entry, and data base management and
coordinate such activities with IBM's systems design and production
functions as described in Schedule E; and
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b. designate and document application information
requirements, including report design and content, frequency of reports,
and accessibility to information;
c. provide support to End Users for questions and problems
related to Applications Software;
d. provide workload forecasts at the intervals agreed between
IBM and OTI and participate in capacity planning with IBM;
e. pay all common carrier charges for local, long distance,
and WATS (in and out) telecommunications services and equipment;
f. be responsible for disaster recovery;
g. be responsible for all costs associated with off-site data
storage;
h. be responsible for all mail, messenger, postage, courier
and output distribution services;
i. be responsible for all costs of providing all storage
media (tapes, disc packs, etc.) required by IBM in the performance of
the Services;
j. be responsible for microfiche/microfilm supplies and
retrieval and storage of any and all output; and
k. be responsible for such other OTI activities and functions
as are described in this Agreement.
5.5 APPROVALS AND NOTIFICATION
In the event that IBM's performance of Services requires or is
contingent upon OTI's performance of an obligation hereunder (such as providing
approval or notification, or taking a recommended corrective action), and OTI
delays or withholds such performance beyond the agreed-to time period (or beyond
five business days, if a time period is not specified), and subject always to
Section 16.3 of this Agreement, IBM shall be relieved of any resulting failure
to perform all or part of the Services or its failure to meet any related
Service Level, until OTI performs its responsibility. If OTI has delayed or
withheld performance, IBM shall notify OTI if the failure of OTI to perform
will, or is likely to, result in IBM being unable to perform the Services. OTI's
responsibility for payment pursuant to Section 6 shall continue in full force
and effect and OTI also agrees to reimburse IBM for any additional expenses
incurred as a result of such delay.
5.6 OTI'S FAILURE TO PERFORM OTI RESPONSIBILITIES
The failure by OTI to perform any nonmonetary obligation slated
in Section 5 of this Agreement shall not, for the purposes of Section 10.2, be
considered as a material breach of this Agreement and Section 17.6 of this
Agreement shall apply. OTI's responsibility for payment
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pursuant to Article 6 shall continue in full force and effect and OTI also
agrees to reimburse IBM for any additional expenses incurred by IBM as a result
of such nonperformance.
6.0 CHARGES AND EXPENSES
6.1 MONTHLY SERVICES CHARGE
OTI agrees to pay the specified Monthly Services Charge for each
month of the Term together with the other amounts as described in this Section 6
and set forth in Schedule J.
OTI agrees to pay IBM a cost of living adjustment (COLA) during the term
of this Agreement *
The COLA will be calculated and payable in accordance with Schedule J.
6.2 NEW ENTITIES
If OTI acquires any additional Affiliate during the Term and OTI
desires that IBM provide Services for such Affiliate, IBM will provide such
Affiliate with Services in accordance with this Agreement, subject to OTI's
agreement to pay additional charges if IBM's acceptance of such responsibilities
requires New Services as described in Section 6.3.
6.3 NEW SERVICES
In the event that OTI requests IBM to perform functions different
from, and/or in addition to, the Services and IBM elects to provide such
services, the charge to OTI for IBM performing such functions will be determined
as follows:
a. IBM will quote to OTI the increase in the Monthly Services
Charge or other payment method that will be attributable to such New
Services, which will be based upon the required proportional increase in
system and other applicable resources relative to the Monthly Services
Charge;
b. the pricing for any New Services will be established on a
basis which is no less favourable than that for other IBM customers in
Canada for similar goods/services provided in similar volumes;
c. OTI, upon receipt of such quote, may then elect to have
IBM perform the New Services and, subject to a written amendment to this
Agreement signed by the Parties for such New Services, the Monthly
Services Charge and the Services set out in Schedule E will be amended,
if necessary, to reflect such New Services, and
OTI's request will be managed in accordance with the Change Order
Process set out in the Procedures Manual.
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
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6.4 TAXES
a. In addition to the Monthly Services Charge, OTI agrees to
pay any taxes, duties or government levies resulting from the
transactions under this Agreement. This does not include taxes based
upon IBM's income. OTI will also be responsible for paying all taxes due
on or with respect to OTI Machines and Applications Software and for the
payment of any telecommunications taxes for network lines and circuits.
b. Each Party shall bear sole responsibility for all taxes,
assessments and other real property-related levies on its owned or
leased real property.
c. The Parties agree to reasonably cooperate with each other
to more accurately determine each Party's tax liability and to minimize
such liability to the extent legally permissible.
d. Each Party shall provide and make available to the other
exemption certificates and other tax-related information reasonably
requested by either Party. The Parties will also work together to
segregate the Monthly Services Charge into separate payment streams:
1. that for taxable Services;
2. that for nontaxable Services; and
3. that for which IBM functions merely as a paying agent for
OTI in receiving goods, supplies or services (including
leasing and licensing arrangements) that otherwise are
nontaxable or have previously been subject to tax.
6.5 EXTRAORDINARY REDUCTION OF OTI WORK
a. If, during the Term, OTI experiences significant changes
in the scope or nature of its business which have or are reasonably
expected to have the effect of causing a sustained substantial decrease
of * percent or more in the amount of IBM resources used in performing
the Services, provided such decreases are not due to OTI resuming the
provision of such Services by itself or OTI transferring the provision
of such Services to another vendor, such changes shall be governed by
this Section. Examples of the kinds of events that might cause such
substantial decreases are:
1. changes to locations where OTI operates;
2. changes in OTI's products or markets;
3. mergers or divestitures;
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
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4. changes in the method of service delivery (other than use
of another vendor); or
5. changes in market priorities.
b. OTI will notify IBM of any event or discrete set of events
which OTI believes qualifies under this Section, and IBM will identify
in a plan that will be submitted to OTI for review and acceptance, any
changes that can be made to accommodate the extraordinary decrease of
resource requirements in a cost-effective manner without disruption to
OTI's ongoing operations, and the cost savings that will result
therefrom.
c. Upon acceptance by OTI, IBM will make any applicable
adjustments to the Monthly Services Charge to reflect the foregoing and
distribute an amended Schedule J to the Parties.
d. OTI may, at its option and expense, employ an accredited
and independent auditor to verify IBM's methodology for calculating the
savings referenced in Section 6.5(b) above conforms to accepted
accounting practices.
6.6 SERVICES TRANSFER ASSISTANCE
a. It is the intent of the Parties that at the expiration or
termination of this Agreement, IBM will cooperate with OTI to assist
with the orderly transfer of the Services provided by IBM hereunder to
another services provider or OTI itself. Prior to expiration or
termination of the Agreement, OTI may request IBM to perform and, if so
requested, IBM shall perform (except in the event of termination for
cause by IBM) services in connection with migrating the work of OTI to
another services provider or OTI itself ("Services Transfer
Assistance"). Services Transfer Assistance shall be provided:
1. until the effective date of expiration or termination with
respect to the Services; and
2. with respect to expiration or termination of related
services which are in addition to the Services, for up to
six additional months after the effective date of
expiration or termination.
Subject to Section 6.6(c) below, Services Transfer Assistance
shall include providing OTI and its Affiliates and their agents,
contractors and consultants, as necessary, with services such as the
following:
1. Premigration Services
(a) freezing all noncritical Software changes;
(b) notifying all IBM subcontractors of procedures to
be followed during the turnover phase;
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(c) reviewing all Software libraries (tests and
production) with the new service provider and/or
OTI;
(d) assisting in establishing naming conventions for
the new production site;
(e) analyzing space required for the data bases and
Software libraries; and
(f) generating a tape and computer listing of the
source code in a form reasonably requested by OTI.
2. Migration Services
(a) unloading the production data bases;
(b) delivering tapes of production data bases (with
content listings) to the new operations staff;
(c) assisting with the loading of the data bases:
(d) assisting with the communications network turnover,
if applicable; and
(e) assisting in the execution of a parallel operation
until the effective date of expiration or
termination of this Agreement.
3. Postmigration Services
(a) answering questions regarding the Services on an
as-needed basis; and
(b) turning over of any remaining OTI-owned reports and
documentation still in IBM's possession.
c. If any Services Transfer Assistance provided by IBM
requires the utilization of additional resources, OTI will pay IBM for
the incremental resources. If the Services Transfer Assistance requires
IBM to incur expenses in excess of the expenses that IBM would otherwise
incur in the performance of this Agreement, then:
1. IBM shall notify OTI of any additional expenses associated
with the performance of any additional services pursuant
to this Section prior to performing such services and upon
OTI's authorization, IBM shall perform the additional
services and invoice OTI for such services; and
2. OTI shall pay IBM for such additional expenses incurred to
provide the additional services within ten days of the
date of the invoice.
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6.7 OTHER EXPENSES AND CHARGES
OTI will be financially responsible for all costs and expenses
associated with its responsibilities specified in Section 5. Such costs and
expenses are not included within the Monthly Services Charge or any other
charges payable by OTI under this Agreement.
6.8 OPTION TO PURCHASE OR LEASE
a. Provided that OTI is not in default of its obligations
under this Agreement, OTI shall have the option, at any time during the
term of this Agreement, to purchase from IBM the Service Machines then
currently being used by IBM on a dedicated basis to perform the
Services, *. OTI shall be responsible for any taxes associated with the
purchase as well as the costs for any appraisals of such Machines. In
the alternative, OTI may request and IBM may, in its discretion, agree
to leasing such Machines directly to OTI on terms and conditions to be
agreed between OTI and IBM.
b. Should OTI exercise the option to purchase set out in
Section 6.8(a) above, the Monthly Services Charge shall be accordingly
reduced.
7.0 INVOICING AND PAYMENT
7.1 MONTHLY SERVICES CHARGE INVOICES
IBM will invoice OTI monthly in advance for the Monthly Services
Charge for that month. The invoice will state separately applicable taxes owed
by OTI, if any, by tax jurisdiction. The invoice will also state separately that
portion of the Services Charge which is in respect of the use by IBM of the
Services Machines identified in Section 1 of Schedule D to deliver Services.
7.2 OTHER CHARGES
Any amount due under this Agreement for which a time for payment
is not otherwise specified will be due and payable within 30 days after the date
of the invoice.
7.3 INVOICE PAYMENT
OTI shall pay each invoice by wire funds transfer or other
electronic means acceptable to IBM to an account specified by IBM. Payment of
the Monthly Services Charge invoice shall be made within 30 days of the date of
an invoice. In the event that any payments are not received by IBM within 5 days
of the due date, OTI shall also pay a late fee equal to the lesser of:
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
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a. * percent of the amount of such payment per month
(* percent per annum); or
b. the maximum amount permissible by law.
7.4 PRORATION
All periodic charges under this Agreement are to be computed on a
calendar-month basis and will be prorated for any partial month, unless
specifically stated otherwise in this Agreement.
7.5 OTHER CREDITS
Except as otherwise set forth in this Agreement, with respect to
any amount to be paid or reimbursed to OTI by IBM pursuant to this Agreement,
IBM may, at its option, pay that amount to OTI or give OTI a credit against the
charges otherwise payable to IBM hereunder at the time any such amount is due
and payable to OTI.
8.0 INTELLECTUAL PROPERTY RIGHTS
This Section specifies the ownership and license rights of
Materials, as defined below, developed by IBM, its subcontractors and OTI
personnel pursuant to this Agreement.
8.1 INTELLECTUAL PROPERTY DEFINITIONS
a. "Modified Work" means a work based on one or more
preexisting works, including, without limitation, a condensation,
transformation, expansion or adaptation, which, if prepared without
authorization of the owner of the copyright of such preexisting work,
would constitute a copyright infringement.
b. "Developed Code" means Materials which are computer
programming code, including source and object code, developed pursuant
to this Agreement or in performance of the Services.
c. "Materials" means literary works or other works of
authorship not available under vendor software license agreements
(including IBM license agreements) which are developed under this
Agreement or in performance of the Services such as programs, program
listings, programming tools, documentation, reports and drawings,
including Type I, Type II, Type III and Type IV Materials.
d. "Type I Material" means all Developed Code pertaining to
OptiMark Proprietary Elements; all Developed Code that is unique to the
OptiMark Proprietary Systems or implements OptiMark Proprietary Elements
including messaging protocols; any Developed Code which is a Modified
Work of software which is either owned by
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
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OTI or is licensed to OTI and which is specifically developed by or on
behalf of OptiMark or which is developed by IBM at OptiMark's request
and expense; any Developed Code that incorporates OptiMark Confidential
Information; and those portions of Type IV Material which contain or
disclose OptiMark Proprietary Elements.
e. "Type II Material" means Developed Code which does not
constitute a Modified Work of any software owned by OTI, IBM or its
Affiliates or any third party.
f. "Type III Material" means Developed Code which a.
constitutes a Modified Work of software which is licensed by IBM, its
Affiliates or subcontractors or for which the preexisting copyright is
owned or licensed by IBM, its Affiliates or subcontractors.
g. "Type IV Material" means literary works of authorship
developed under this Agreement or in the performance of the Services,
such as user manuals, charts, graphs and other written documentation and
machine-readable text and files, excluding Developed Code.
8.2 IBM DEVELOPED MATERIALS
With respect to any Materials developed either solely by IBM or
its subcontractors, or jointly by OTI personnel and IBM or its subcontractors:
a. Type I Materials shall be owned by OTI, and IBM shall have
the following license rights:
1. a nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform and distribute such
Materials internally within IBM for the sole benefit of,
and exclusive use to provide the Services to, OTI during
the Term; and
2. the right to sublicense third parties to do any of the
foregoing.
b. Type II Materials shall be owned by IBM, and OTI shall
have the following license rights:
1. a perpetual, nonexclusive, worldwide, paid-up license to
use, execute, reproduce, display, perform and distribute
such Materials for use only in conjunction with the
OptiMark Proprietary Trading Systems for the sole benefit
of and exclusive use by OTI; and
2. the right to sublicense third parties to do any of the
foregoing.
c. Type III and IV Materials shall be owned by IBM, and OTI
shall have the following license rights:
1. a nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform and distribute such
Materials for use only in conjunction
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with the OptiMark Proprietary Trading Systems for the sole
benefit of and exclusive use by OTI in receipt of the
Services during the Term; and
2. the right to sublicense third parties to do any of the
foregoing;
provided, however, that OTI shall have such additional license rights as
may be granted to OTI pursuant to subsection 8.4 below.
8.3 OTI DEVELOPED MATERIALS
With respect to any Materials which are or have been developed
solely by OTI personnel, whether or not developed under this Agreement, such
Materials shall be owned by OTI, and IBM at OTI's sole option, shall have the
following license rights:
a. a nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform and distribute such Materials
internally within IBM for the sole benefit of, and exclusive use to
provide the Services to, OTI during the Term; and
b. the right to sublicense third parties to do any of the
foregoing.
8.4 GENERAL RIGHTS
a. At the expiration or earlier termination of this
Agreement, so long as OTI has fully complied with all of its
obligations, and is not in default under this Agreement, IBM will grant
to OTI the following license rights in only the Type III and IV
Materials owned by IBM, and not the software for which such Type III and
IV Materials constitute a Modified Work:
1. a perpetual, nonexclusive, worldwide, paid-up license to
use, execute, reproduce, display, perform and distribute
such Materials for use only in conjunction with the
OptiMark Proprietary Trading Systems for the sole benefit
of and exclusive use by OTI; and
2. the right to sublicense third parties to do any of the
foregoing.
b. Any ownership or license rights herein granted to either
Party are limited by and subject to any patents and copyrights held by,
and terms and conditions of any license agreements with, applicable
vendor software providers, including, but not limited to, IBM.
c. To the extent any of the Materials may not, by operation
of law, be owned by the Party to which ownership has been granted (as
described in this Section 8), each Party agrees to assign and hereby
assigns, without further consideration, the ownership of all right,
title and interest in all U.S., Canadian and foreign copyrights and mask
work rights (if any) in such Materials to the other Party, and such
assignee Party shall have the right to obtain and hold in its own name
copyrights, registrations, renewals and all other rights relating or
pertinent thereto.
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d. The Parties agree to reproduce copyright legends which
appear on any portion of the Materials.
e. Subject to the terms of the Confidentiality Agreement,
this Agreement shall not preclude IBM or OTI from developing materials
or providing services which are competitive to the Materials
irrespective of their similarity to computer programming code,
documentation or other materials or services which might be delivered
pursuant to this Agreement, except to the extent any of same may
infringe any of the other Party's patent rights or copyrights.
f. Except for the licenses expressly granted under this
Section 8, neither this Agreement nor any disclosure made hereunder
grants any license to either Party under any patents or copyrights of
the other Party.
9.0 CONFIDENTIALITY
IBM and OTI agree that any information which is exchanged by the Parties
shall be subject to the Confidentiality Agreement.
10.0 TERMINATION
10.1 TERMINATION FOR CONVENIENCE
Subject to the other provisions of this Agreement, OTI may
terminate this Agreement beginning June 1, 2000, upon at least 180 days' prior
written notice to IBM. If OTI terminates this Agreement prior to the expiration
of the Term, other than as specified in Section 10.2, OTI agrees to pay IBM on
the effective date of the termination, the Termination Charge as specified in
Schedule J. Any termination charge will be prorated according to the following
formula:
Prorated Termination Charge =
[{(A-B) / 12 months} x C] + B + D
where:
A = the Base Termination Charge specified in Schedule J for the year
in which the termination is effective;
B = the Base Termination Charge specified in Schedule J for the year
after the year in which the termination is effective;
C = the number of months remaining during the year in which the
termination is effective; and
D = the Additional Termination Charge specified in Schedule J.
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In addition to payment of the Prorated Termination Charge, OTI
shall:
1. exercise the option to purchase set out in Article 6.8; or
2. pay to IBM the amount equal to the lease termination
charges and any incidental costs which IBM will incur
relating to the termination of the leases; and
3. OTI shall be responsible for the re-licensing charges,
transfer charges and the costs of terminating licenses,
leases or contracts for software provided by IBM, other
than Systems Software retained by IBM.
10.2 TERMINATION FOR CAUSE
a. Upon written notice, either Party may terminate this
Agreement, without charge to the terminating Party, in the event of a
material breach by the other. However, the Party seeking termination
will provide the other Party with sufficient, reasonable written prior
notice of such material breach and the opportunity to cure same, as
follows:
1. in the event of a failure to pay any amount due and
payable under this Agreement when due, at least 10 days
and in the case of a failure to pay by OTI, the periods
and process specified in Article 10.3 shall apply; and
2. in the event of any other material breach, at least 45
days.
b. If the nature of any nonmonetary breach is such that it
would be unreasonable to expect a cure within a 45-day period, the
breaching Party shall be given an additional 15 days to cure such
breach. In the event the material breach is not cured within the periods
specified above after delivery of the notice, the nonbreaching Party may
terminate this Agreement, which termination shall be in writing, as of a
date specified in such notice of termination. The terminating Party
shall have all rights and remedies generally afforded by law or equity,
subject to the limitations expressed in this Agreement.
10.3 TERMINATION FOR OTI'S FAILURE TO PAY
a. In the event OTI fails to pay any Monthly Services Charge
invoice within 45 days of the invoice date, IBM shall have the right to
terminate this Agreement in accordance with the terms of this Section
10.3. Before IBM can terminate this Agreement due to any Payment
Default, IBM shall provide OTI with written notice of IBM's intention to
terminate this Agreement specifying the claimed Payment Default (a
"Payment Default Notice"). The notice shall provide a period of not less
than 10 days from the date of the notice (the "cure period") within
which OTI may cure such default.
b. If OTI fails to cure any Payment Default within the first
five days of the cure period, IBM shall provide a further written notice
to OTI setting out the claimed Payment Default. If OTI fails to cure any
Payment Default within the cure period, upon expiry of five days from
the date of such further notice, IBM shall have the right to
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terminate this Agreement and cease to provide the Services, which
termination shall be in writing, and shall be effective as of a date
specified in such notice of termination. This right may be exercised by
IBM following the expiry of the cure period and at any time until the
amount specified in the Payment Default Notice and any other overdue and
unpaid Monthly Services Charge invoices after the invoice specified in
the Payment Default Notice and prior to the delivery of the Payment
Default Notice ("Other Overdue Invoices"), have been paid. If on any two
occasions during any 12-month period during the term of this Agreement,
IBM issues a Payment Default Notice and the Payment Default is cured by
OTI on or after the 55th day after the invoice date therefor, IBM shall
have the right to terminate this Agreement within 30 days of such event;
provided that IBM shall not have the right to cease to provide the
Services by reason of such termination and IBM will provide OTI with
Services Transfer Assistance in accordance with the provisions of
Section 6.6. In such event, IBM will invoice OTI monthly in advance,
amounts shall be due and payable within 10 days of the invoice date and
if OTI fails to pay for the Services when due, IBM shall be entitled to
give OTI 5 days' notice of its intention to cease providing such
Services if OTI does not cure the payment defaults within such 5-day
period.
c. Notwithstanding b) above, IBM will not be entitled to
terminate this Agreement or cease providing Services because of OTI's
failure to pay amounts due and owing under this Agreement if OTI
notifies IBM in writing that OTI is of the bona fide belief that it is
not obliged to make such payments and OTI pays any amount which OTI does
not dispute, but in any event not less than 90% of the amount due and
owing and described in the applicable Monthly Services Charge invoice
delivered to OTI.
10.4 TERMINATION FOR ACT OF INSOLVENCY
Upon the occurrence of an Act of Insolvency with respect to
either Party, this Agreement may be terminated by the other Party. If a court
holds that IBM is unable to terminate this Agreement upon the occurrence of an
Act of Insolvency with respect to OTI and IBM is obligated in such circumstances
to continue to provide the Services to OTI, then the Monthly Services Charges
and all other amounts owed to IBM under this Agreement shall be due and payable
by OTI to IBM in advance by certified cheque.
10.5 EXTENSION OF SERVICES
Except in the case of a termination of this Agreement due to a
material breach by OTI, OTI may once request and IBM will extend the provision
of Services for a period not to exceed 180 days beyond the effective date of
termination or expiration; provided, however, in the event of a termination by
OTI pursuant to Section 10.2, the Termination Charge shall not be adjusted as a
result of a request by OTI to extend the provision of the Services. Such request
must be in the form of a written notice received by IBM not less than 60 days
prior to the effective date of termination or expiration of the Agreement except
in the event of material breach by IBM, in which case a 30-day notice provision
will apply. IBM will prepare an amendment to the Agreement (including the
affected Schedules) extending the Term, the Monthly Services Charge and other
related provisions, as appropriate.
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OTI will pay IBM for all additional charges and expenses, if any,
incurred by IBM as a result of IBM's provision of such extended Services which
are not otherwise recovered by the Monthly Services Charge or other charging
methodology described herein.
10.6 OTHER RIGHTS UPON TERMINATION OR EXPIRATION
Provided OTI is not in default of its obligations under this
Agreement:
a. For software proprietary to IBM developed under this
Agreement and not generally commercially available, IBM will provide a
license to OTI, for use only in conjunction with the OptiMark
Proprietary Trading Systems for the sole benefit of and exclusive use by
OTI, upon terms and prices to be mutually agreed upon by the Parties or,
at OTI's option, IBM will recommend a mutually agreeable commercially
available substitute to perform the same function.
b. Subject to OTI's acceptance of any applicable vendor terms
and conditions and payment by OTI of any transfer fee, license fee or
other charges imposed by such vendor:
1. with respect to generally commercially available Software
(including IBM Software), if IBM has licensed or purchased
and is using such Software solely in providing the
Services to OTI on the date of expiration or termination,
IBM will transfer the Software to OTI upon OTI's
reimbursement to IBM for initial license or purchase
charges for such Software in an amount equal to the
remaining unamortized cost of such Software, if any,
depreciated over a five-year life;
2. with respect to generally commercially available Software
(including IBM Software), if IBM has licensed or purchased
and is using such Software in providing the Services to
OTI and other IBM customers in a shared environment on the
date of expiration or termination, IBM will assist OTI in
obtaining licenses for such Software; and
3. IBM will transfer or assign to OTI or its designee, upon
OTI's request, on mutually acceptable terms and
conditions, any contracts applicable solely to the
provision of Services to OTI (i.e., maintenance and other
available third-party services) then being used by IBM to
perform the Services.
c. IBM will provide Services Transfer Assistance pursuant to
Section 6.6.
11.0 LIABILITY
11.1 GENERAL INTENT
Each Party's and each of its subcontractor's entire liability to
the other Party and its exclusive remedies are set forth in this Section and
Section 13. Subject to the specific provisions of this Section, it is the intent
of the Parties that each Party will be liable to the other
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Party for damages incurred by the nonbreaching Party as a result of the
breaching Party's failure to perform its obligations in the manner required by
this Agreement.
11.2 DAMAGES
a. Each Party's and each of its subcontractor's entire
liability for actual, direct damages, resulting from such Party's
performance or nonperformance under this Agreement, regardless of the
form of action, and whether in contract, tort (including, without
limitation, negligence), warranty or other legal or equitable grounds,
will be limited in the aggregate for all claims, causes of actions and
occurrences to an amount equal to:
1. the amount actually paid by OTI to IBM for the Services
during the 6 months prior to the event which is the
subject of the claim; or
2. in the case where less than 6 months of the Term have
elapsed at the time of an event which is the subject of a
claim, the actual charges paid by OTI to IBM during the
first 6 months of the Term.
b. The limitation in Section 11.2(a) above will not apply to:
1. any obligation or failure by OTI to pay any amounts due or
past due and owing to IBM pursuant to the terms of this
Agreement;
2. Losses by either Party for bodily injury or damage to real
property or tangible personal property, as described in
Section 13.3; and
3. either Party's obligation to indemnify the other for
patent and copyright infringement Losses and Losses
relating to tax liabilities, as provided in Sections
13.1(a) and (c) and 13.2(a) and (d), respectively.
c. In no event will either Party have any liability whether
based on contract, tort (including, without limitation, negligence),
warranty or any other legal or equitable grounds, for any loss of
interest, profit or revenue by the other Party or for any consequential,
indirect, incidental, special, punitive or exemplary damages suffered by
the other Party, arising from or related to this Agreement, even if such
Party has been advised of the possibility of such losses or damages;
provided, however, that this clause will not prevent either Party from
recovering amounts owed under this Agreement.
d. In no event will IBM have any liability whether based on
contract, tort (including, without limitation, negligence), warranty or
any other legal or equitable grounds, for any third-party claims against
OTI for Losses, except for Losses arising out of claims set forth in
Sections 11.2(b)(2) and 11.2(b)(3).
e. In no event will IBM or its subcontractors be liable for
any damages if and to the extent caused by OTI's failure to perform its
responsibilities, nor shall OTI be liable for any damages if and to the
extent caused by IBM's (or its subcontractors') failure to perform its
responsibilities as set forth in this Agreement.
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11.3 LOSS OF DATA
IBM will not be responsible for:
a. corruption, damage, loss or mistransmission of data;
however, IBM will use all commercially reasonable efforts to reconstruct
the affected data from available backup materials as specified in the
Procedures Manual; or
b. the security of data during transmission via public
telecommunications facilities.
12.0 WARRANTY
12.1 REPRESENTATIONS AND WARRANTIES
a. OTI represents that OTI is either the owner of each OTI
Machine or is authorized by its owner to include it under this
Agreement.
b. OTI represents and warrants that all obligations with
respect to the Contracts accruing prior to or attributable to periods
prior to the Assumption Date have been satisfied.
c. OTI represents and warrants that all obligations with
respect to the Software Licenses accruing prior to or attributable to
periods prior to the Commencement Date have been satisfied.
d. OTI represents and warrants that it will ensure that OTI's
facilities, at which IBM personnel will be required to be present from
time to time for the purpose of performing Services, constitute a safe
working environment in accordance with all applicable laws and OTI shall
deal with all hazardous or toxic substances present in such OTI
facilities as required by the laws applicable to such OTI facilities.
e. IBM represents and warrants that it will ensure that the
IBM Data Center, at which OTI personnel may be present from time to time
in connection with this Agreement, constitutes a safe working
environment in accordance with all applicable laws and IBM shall deal
with all hazardous or toxic substances present in the IBM Data Center as
required by the laws applicable to such IBM Data Center.
12.2 COMPLIANCE WITH OBLIGATIONS
Each Party represents and warrants that its entry into this
Agreement does not violate or constitute a breach of any of its contractual
obligations with third parties.
12.3 YEAR 2000
a. In order to provide the Services, IBM will use Machines
and other products which may include IBM software, hardware and other
products ("IBM
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Products") as well as hardware, software and other products which are
not produced or manufactured by IBM ("Third Party Products").
In this Section 12.3, "Year 2000 ready" means the
capability of IBM Products used to deliver the Services, when used in
accordance with associated documentation, to correctly process, provide
and receive date data within and between the twentieth and twenty-first
centuries, provided that all Third Party Products properly exchange date
data with the IBM Products.
The IBM Products used to provide the Services are either
Year 2000 ready or will be converted by IBM to Year 2000 ready, on a
timely basis.
IBM will use all reasonable efforts to obtain appropriate
Year 2000 warranties for all Third Party Products. Prior to January 1,
1999, IBM may notify OTI if IBM believes there is a reasonable
possibility that any Service will experience date-related problem(s)
arising from the change in century (a "Notice of Exception"), which
problems may impact IBM's ability to provide any Service as is required
by this Agreement. Within sixty (60) days of OTI's receipt of such
notice, OTI may terminate the Service or this Agreement pursuant to
Article 10.1 without obligation to pay the Termination Charge. OTI's
sole remedy and IBM's sole liability for IBM's inability to provide the
Service(s) specified in the Notice of Exception will be termination as
specified in this section 12.3(a).
b. Should IBM be unable to provide Service(s) as required by
this Agreement because any IBM Product used to deliver the Service(s) is
not Year 2000 ready, IBM will immediately commence all reasonable
efforts, working in conjunction with OTI, to determine the underlying
source of the problem. If it is confirmed that the source is an IBM
Product, IBM will use all reasonable efforts to develop and implement,
at IBM's expense, a solution and to restore the Service(s). If IBM is
unable to develop and implement such a solution within a commercially
reasonable period, IBM will notify OTI and OTI may, at its option,
terminate this Agreement pursuant to Section 10.2 of this Agreement.
c. It IBM determines that IBM's inability to provide the
affected Service is due to the inability of Third Party Products, used
by IBM to deliver the Services, to correctly process or properly
exchange date data with IBM Products, IBM will endeavour to enforce the
terms of the Third Party Product supplier's warranties and IBM will work
with the Third Party Product supplier and OTI to help identify and
implement a solution to the problem. If a solution cannot be developed
and implemented within a commercially reasonable period, IBM will notify
OTI and OTI may, at OTI's option, terminate this Agreement pursuant to
Section 10.1 without obligation to pay the Termination Charge.
Notwithstanding any other provision of this Agreement, IBM shall have no
further liability with respect to such matter.
d. Except as expressly stated above, IBM will be relieved of
its obligations to provide Services under this Agreement due to the
inability of Third Party Products to
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correctly process or properly exchange accurate date data with the IBM
Products used to provide the Services.
e. OTI will use all reasonable efforts to obtain appropriate
Year 2000 warranties from its vendors and suppliers of OTI Machines and
for the Applications Software. If IBM experiences any problem in
delivering Services arising from the change in century which problem is
attributable to the inability of OTI Machines or the Applications
Software to correctly process or properly exchange accurate date data
with IBM furnished equipment or Services under this Agreement, or the
inability of OTI to perform a responsibility under this Agreement so as
to permit the correct processing or proper exchange of accurate date
data with IBM (an "OTI Year 2000 Problem"), OTI will use all reasonable
efforts to develop and implement a solution to the OTI Year 2000
Problem, at OTI's expense, which will permit IBM to deliver the Services
as required by this Agreement. If OTI cannot remedy the OTI Year 2000
Problem within a commercially reasonable period of time, OTI may, at its
option, terminate this Agreement pursuant to Section 10.1. Failing such
termination, OTI shall continue to be responsible for payment in
accordance with Section 6. Except as stated in this section 12.3(e), OTI
will have no further liability to IBM with respect to OTI Year 2000
Problems.
12.4 DISCLAIMERS
a. IBM does not warrant the accuracy of any advice, report,
data or other product delivered to OTI which is produced with or from
data and/or Software provided by OTI. Such products are delivered AS IS,
and IBM shall not be liable for any inaccuracy thereof.
b. Subject to the obligations of IBM contained in this
Agreement, IBM does not assure uninterrupted or error-free operation of
the Machines.
c. EXCEPT AS PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER
EXPRESS WARRANTIES, AND THERE ARE NO IMPLIED WARRANTIES OR CONDITIONS,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.5 AUTHORIZATION AND ENFORCEABILITY
Each Party hereby represents that:
a. it has all requisite corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated
hereby;
b. the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been
duly authorized by all requisite corporate action on the part of each
Party; and
c. this Agreement has been duly executed and delivered by
such Party and (assuming the due authorization, execution and delivery
hereof by the other Party) is a
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valid and binding obligation of such Party, enforceable against it in
accordance with its terms.
12.6 REGULATORY AND CORPORATE PROCEEDINGS
Each Party agrees to obtain all necessary regulatory approvals
applicable to its business, obtain any necessary permits, and comply with any
regulatory requirement, in each case, applicable to the performance, or receipt,
of the Services.
13.0 INDEMNITIES
13.1 INDEMNITY BY IBM
IBM agrees to indemnify, defend and hold OTI, its Affiliates and
their respective officers, directors, employees, agents, successors and assigns
(the "OTI Indemnitees") harmless, in accordance with the procedures described in
Section 13.4 from and against any and all Losses incurred by OTI Indemnitees
arising from or in connection with:
a. any claims of infringement made against OTI Indemnitees of
any Canadian patent or copyright, trademark, service mark, trade name or
similar proprietary rights, or misappropriation of a trade secret,
conferred by contract or by common law or by any law of Canada or any
province therein, alleged to have occurred because of equipment,
systems, programs or products provided to OTI by IBM; provided, however,
that IBM will have no obligation with respect to any Losses to the
extent the same arise out of or in connection with OTI's modification of
equipment, systems, programs or products or OTI's combination, operation
or use with devices, data, equipment, systems, programs or products not
furnished by IBM or its subcontractors;
b. any duties or obligations of IBM arising out of or in
connection with any License accruing on or after the Commencement Date,
or arising out of or in connection with any Lease or Contract accruing
on or after the Assumption Date, subject to Sections 12.1(b), 12.1(c)
and 3.5;
c. any amounts, including but not limited to taxes, interest
and penalties assessed against the OTI Indemnitees, which are
obligations of IBM pursuant to Section 6.4; and
d. any environmental claim arising out of this Agreement or a
result of the Services performed at the IBM Data Centre where IBM has
caused the environmental damage by actions unrelated to and unauthorized
by this Agreement.
13.2 INDEMNITY BY OTI
OTI agrees to indemnify, defend and hold IBM, its Affiliates and
their respective officers, directors, employees, agents, successors and assigns
(the "IBM Indemnitees") harmless, in accordance with the procedures described in
Section 13.4, from and against any and all Losses, incurred by the IBM
Indemnitees, arising from or in connection with:
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a. any claims of infringement made against the IBM
Indemnitees of any Canadian patent or copyright, trademark, service
mark, trade name or similar proprietary rights, or misappropriation of a
trade secret, conferred by contract or by common law or by any law of
Canada, alleged to have occurred because of equipment, systems, programs
or products provided to the IBM Indemnitees by OTI hereunder; provided,
however, that OTI will have no obligation with respect to any Losses to
the extent the same arise out of or in connection with IBM's
modification of equipment, systems, programs or products or IBM's
combination, operation or use with devices, data, equipment, systems,
programs or products not furnished by OTI or its subcontractors;
b. any duties or obligations of OTI arising out of or in
connection with any License accruing prior to the Commencement Date, or
arising out of or in connection with any Lease or Contract accruing
prior to the Assumption Date, or any agreements relating to such Lease,
License or Contract, subject to Section 3.2 and 3.3;
c. any amounts, including but not limited to, taxes, interest
and penalties assessed against the IBM Indemnitees, which are
obligations of OTI pursuant to Section 6.4;
d. any environmental claim arising out of this Agreement or a
result of the Services performed at OTI facilities unless IBM has caused
the environmental damage by actions unrelated to and unauthorized by
this Agreement; and
e. any claim by a third party arising from a failure of OTI
to obtain or pay for a Required Consent.
13.3 CROSS INDEMNITY AND CONTRIBUTION
Each Party agrees to contribute to the amount paid or payable by
the other Party for any and all Losses for which such Party is legally liable
and in proportion to such Party's comparative fault in causing such Losses,
arising in favor of any person, corporation or other entity including the
Parties hereto and their employees, contractors and agents, on account of bodily
injuries, death or damage to tangible personal or real property in any way
incident to, or in connection with or arising out of:
a. this Agreement;
b. the Services provided by IBM hereunder;
c. the presence of such Party, its employees, contractors or
agents on the premises of the other Party; or
d. the negligent act or omission of such Party, its
employees, contractors or agents.
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13.4 INDEMNIFICATION PROCEDURES
a. If any civil, criminal, administrative or investigative
action or proceeding (any of the above being a "Claim") is commenced
against any Party entitled to indemnification under Sections 13.1, 13.2
or 13.3 (an "Indemnified Party"), written notice thereof shall be given
to the Party that is obligated to provide indemnification under such
Sections (the "Indemnifying Party") as promptly as practicable. After
such notice, if the Indemnifying Party shall acknowledge in writing to
such Indemnified Party that this Agreement applies with respect to such
Claim, then the Indemnifying Party shall be entitled, if it so elects,
in a written notice delivered to the Indemnified Party not fewer than 10
days prior to the date on which a response to such Claim is due, to take
control of the defense and investigation of such Claim and to employ and
engage legal counsel of its sole choice to handle and defend the same,
at the Indemnifying Party's sole cost and expense. The Indemnifying
Party shall keep the Indemnified Party reasonably and timely apprised of
the events of the defense and/or settlement (including, without
limitation, the providing of copies of the relevant pleadings, other
filings and settlement proposals) and shall give full consideration to,
and be open to discussion of, the views and suggestions of the
Indemnified Party (and/or its counsel) in proceeding with such defense
and/or settlement. The Indemnified Party shall cooperate in all
reasonable respects with the Indemnifying Party and its legal counsel in
the investigation, trial and defense of such Claim and any appeal
arising therefrom; provided, however, that the Indemnified Party may, at
its own cost and expense, participate, through its legal counsel or
otherwise, in such investigation, trial and defense of such Claim and
any appeal arising therefrom. No settlement of a Claim shall be entered
into:
1. which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to the Indemnified
Party, of a release from liability in respect of such
Claim; and
2. in all instances in which the settlement includes a remedy
other than the payment of money by the Indemnifying Party,
without the consent of the Indemnified Party, which
consent will not be unreasonably withheld.
b. After notice by the Indemnifying Party to the Indemnified
Party of its election to assume full control of the defense of any such
Claim, the Indemnifying Party shall not be liable to the Indemnified
Party for any legal expenses incurred thereafter by such Indemnified
Party in connection with the defense of that Claim. If the Indemnifying
Party does not assume full control over the defense of a Claim, the
Indemnifying Party may participate in such defense, at its sole cost and
expense, and the Indemnified Party shall have the right to defend the
Claim in such manner as it may deem appropriate, at the cost and expense
of the Indemnifying Party.
c. In addition, if any claim or cause of action referred in
subsection 13.1(a) or 13.2(a) above is made against the Indemnified
Party which occasions any material risk of an injunction against the
Indemnified Party which would prevent IBM from delivering, or OTI
receiving the Services, the Indemnifying Party will upon notice of the
claim or cause of action and at no cost to the Indemnified Party,
either:
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1. obtain a license from the third party for the Indemnified
Party to continue providing or receiving the Services (as
the case may be) which shall come into effect no later
than the earliest effective date of any such injunction;
and/or
2. modify the equipment, systems, programs or products to
avoid such infringement, and use all diligent efforts
which are not unreasonable to complete such modifications
before any injunction precluding the use thereof can be
secured or come into effect, including securing the
assistance of Affiliates in so doing.
13.5 SUBROGATION
In the event that an Indemnifying Party shall be obligated to
indemnify an Indemnified Party pursuant to Sections 13.1, 13.2 or 13.3, the
Indemnifying Party shall, upon payment of such indemnity in full, be subrogated
to all rights of the Indemnified Party with respect to the claims and defenses
to which such indemnification relates.
13.6 EXCLUSIVE REMEDY
The indemnification rights of each Indemnified Party pursuant to
Sections 13.1, 13.2 or 13.3 shall be the exclusive remedy of such Indemnified
Party with respect to the claims to which such indemnification relates.
14.0 INSURANCE AND RISK OF LOSS
14.1 INSURANCE
When this Agreement requires performance by IBM's or OTI's
employees or subcontractors on the other Party's premises, the performing Party
shall carry and maintain worker's compensation insurance, or, if permitted by
applicable legislation, employer's liability insurance in lieu thereof, covering
its employees and subcontractors engaged in such performance in amounts no less
than required by law in the applicable location.
14.2 RISK OF LOSS
OTI is responsible for risk of loss of, or damage to, Machines
located on OTI's premises and any loss of or damage to Software in OTI's
possession at the time of such loss or damage. IBM is responsible for risk of
loss of, or damage to, Machines located on IBM's premises and any loss of or
damage to Software in IBM's possession at the time of such loss or damage.
15.0 PUBLICITY
Each Party will submit to the other all advertising, written sales
promotion, press releases and other publicity matters relating to this Agreement
in which the other Party's name or mark is mentioned or language from which the
connection of said name or mark may be inferred or
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implied, and will not publish or use such advertising, sales promotion, press
releases, or publicity matters without prior written approval of the other
Party. However, either Party may include the other Party's name and a factual
description of the work performed under this Agreement on employee bulletin
boards, in its list of references and in the experience section of proposals to
third parties, in internal business planning documents and in its annual report
to stockholders, and whenever required by reason of legal, accounting or
regulatory requirements.
16.0 REVIEW COMMITTEES/DISPUTE RESOLUTION
16.1 JOINT ADVISORY COMMITTEE
IBM and OTI agree to create a committee consisting of two people,
with the following titles, from each Party (the "Joint Advisory Committee"):
a. IBM
1. IBM Service Manager or Delivery Project Executive
2. IBM Project Executive
b. OTI
1. OTI Vice President Operations
2. OTI Project Executive
The Joint Advisory Committee will:
a. conduct quarterly reviews of the progress on projects;
b. annually review the operating and strategic plans prepared
by the IBM and OTI Project Executives;
c. review, on an annual basis, performance objectives and
measurements;
d. provide advice and direction on technology changes; and
e. resolve disputes between the Parties.
16.2 DISPUTE RESOLUTION
Any dispute which cannot be resolved by the Joint Advisory
Committee will be referred to a Management Advisory Committee created by the
Parties which will consist of two people, with the following titles, from each
Party (the "Management Advisory Committee"):
a. IBM
1. IBM Project Executive
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2. Vice President, Banking, Finance & Securities
b. OTI
1. Vice President Operations
2. Senior Executive Contact
c. The Management Advisory Committee shall deal with any
dispute between the Parties either with respect to the interpretation of
any provision of this Agreement or with respect to the performance by
IBM or by OTI hereunder not resolved by the Joint Advisory Committee
shall be resolved as specified in this Section 16.2.
1. Upon the written request of either Party, the Management
Advisory Committee will schedule a meeting as soon as
possible but in any event within 10 business days, for the
purpose of endeavoring to resolve such dispute.
2. The Management Advisory Committee shall meet as often as
necessary to gather and furnish to the other all
information with respect to the matter in issue which is
appropriate and germane in connection with its resolution.
3. The Management Advisory Committee shall discuss the
problem and negotiate in good faith in an effort to
resolve the dispute without the necessity of any formal
proceeding relating thereto.
4. During the course of such negotiation, all reasonable
requests made by one Party to the other for
nonconfidential information reasonably related to this
Agreement, will be honored in order that each of the
Parties may be fully advised of the other's position.
5. The specific format for such discussions will be left to
the discretion of the designated representatives but may
include the preparation of agreed-upon statements of fact
or written statements of position furnished to the other
Party.
d. If the Management Advisory Committee cannot resolve the
dispute, then the dispute shall be escalated to the Chief Executive
Officer of OTI and the General Manager, IBM Global Services, Canada, for
their review and resolution. If the dispute cannot be resolved by such
officers, then the Parties may initiate formal proceedings in the court
with appropriate jurisdiction for the matter in controversy; however,
formal proceedings for the judicial resolution of any such dispute may
not be commenced until the earlier of:
1. the designated representatives concluding in good faith
that amicable resolution through continued negotiation of
the matter in issue does not appear likely; or
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2. 30 days after the initial request to negotiate such
dispute; or
3. 30 days before the statute of limitations governing any
cause of action relating to such dispute would expire.
e. Each Party expressly waives any right it may have to a
trial by jury in any formal proceeding arising hereunder.
f. The Parties agree that no written or oral statements of
position or offers of settlement made in the course of the dispute
resolution process described in paragraphs (c) and (d) above will be
offered into evidence for any purpose in any litigation between the
Parties, nor will any such written or oral statements or offers of
settlement be used in any other manner against either Party in any such
litigation. Further, no such written or oral statements or offers of
settlement shall constitute an admission or waiver of rights by either
Party in connection with any such litigation. At the request of either
Party, any such written statements or offers of settlement, and all
copies thereof, shall be promptly returned to the Party providing the
same.
16.3 CONTINUED PERFORMANCE
Except where clearly prevented by the area in dispute or in the
event of non-payment by OTI of the charges herein, or a portion thereof, for two
months and subject to Section 10.3 of this Agreement, both Parties agree to
continue performing their respective obligations under this Agreement while the
dispute is being resolved unless and until such obligations are terminated or
expire in accordance with the provisions hereof.
17.0 GENERAL
17.1 CONTROL OF SERVICES
a. This Agreement shall not be construed as constituting
either Party as partner of the other or as creating any other form of
legal association that would impose liability upon one Party for the act
or failure to act of the other or as providing either Party with the
right, power or authority (express or implied) to create any duty or
obligation of the other Party.
b. Each Party shall be responsible for the management,
direction and control of its employees and such employees shall not be
employees of the other Party.
c. Except where this Agreement expressly provides that IBM
will perform certain identified Services as agent for OTI, the Services
will be under the control, management and supervision of IBM.
17.2 RIGHT TO PERFORM SERVICES FOR OTHERS
Each Party recognizes that IBM personnel providing Services to
OTI under this Agreement may, subject to the terms of the Confidentiality
Agreement, perform similar services
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for others and this Agreement shall not prevent IBM from using the personnel and
equipment provided to OTI under this Agreement for such purposes. Each Party
recognizes that OTI personnel who are in receipt of IBM Confidential Information
may, subject to the terms of the Confidentiality Agreement, provide services
similar to the Services under this Agreement to OTI and this Agreement shall not
prevent OTI from using OTI personnel for such purposes.
IBM may perform its obligations through its subsidiaries,
Affiliates or through the use of IBM-selected independent contractors; provided,
however, that IBM shall not be relieved of its obligations under this Agreement
by use of such subsidiaries, Affiliates or subcontractors.
17.3 GEOGRAPHIC SCOPE OF SERVICES AND CURRENCY
The Services provided under this Agreement are for Machines and
facilities located within Canada.
Except where expressly stated otherwise, all amounts in this
Agreement are in Canadian dollars.
17.4 AMENDMENTS AND REVISIONS
Changes or modifications to this Agreement and its Schedules may
be made only by a written amendment or revision signed by both Parties. Changes
or modifications in any other form are void.
Any terms and conditions varying from this Agreement and its
Schedules on any order or written notification from either Party not signed by
the other Party are void.
17.5 FORCE MAJEURE
a. Neither Party shall be liable for any default or delay in
the performance of its obligations hereunder:
1. if and to the extent such default or delay is caused,
directly or indirectly, by any cause beyond the reasonable
control of such Party; or
2. provided such default or delay could not have been
prevented by reasonable precautions and cannot reasonably
be circumvented by the nonperforming Party through the use
of commercially reasonable alternative sources,
work-around plans or other means,
(individually, each being a "Force Majeure Event").
b. In such event, the nonperforming Party will be excused
from any further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such Party
continues to use commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent possible
without delay. Any Party so delayed in its performance will immediately
notify the other
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by telephone (to be confirmed in writing within five days of the
inception of such delay) and describe at a reasonable level of detail
the circumstances causing such delay.
c. If any Force Majeure Event substantially prevents,
hinders, or delays performance of the Services necessary for the
performance of OTI's critical functions for more than 30 consecutive
days, then at OTI's option:
1. OTI may procure such Services from an alternate source and
cease to pay IBM charges for such Services and IBM will be
liable for reasonable amounts paid by OTI to procure such
Services to the extent such amounts are in excess of the
charges OTI would have otherwise paid to IBM under this
Agreement for equivalent Services (provided that the
excess amounts paid by OTI shall not include any charges
for disaster recovery services), for up to the lesser of
180 days or the remainder of the Term; or
2. OTI may terminate this Agreement as of a date specified by
OTI in a written notice of termination to IBM, and OTI
will pay IBM *.
d. This Section 17.5 does not limit or otherwise relieve
OTI's obligation to pay any moneys due IBM under the terms of this
Agreement.
17.6 NONPERFORMANCE
To the extent any nonperformance by either Party of its
nonmonetary obligations under this Agreement results from or is caused by the
other Party's failure to perform its obligations under this Agreement, such
nonperformance shall be excused.
17.7 REMARKETING
IBM understands and agrees that OTI is in the business of
providing services to third parties in the OptiMark Securities Trading Field and
that the Services are related to such business. Subject to the foregoing, OTI
may not remarket all or any portion of the Services provided under this
Agreement, or make all or any portion of the Services available to any party
other than OTI, without the prior written consent of IBM.
17.8 WAIVER
No exercise or waiver, in whole or in part, of any right or
remedy provided for in this Agreement shall constitute a waiver of any prior,
concurrent or subsequent right or remedy of the same or any other provisions
hereof.
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
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17.9 SEVERABILITY
If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby, and
such provision shall be deemed to be restated to reflect the original intentions
of the Parties as nearly as possible in accordance with applicable law(s).
17.10 LIMITATIONS PERIOD
Neither Party may bring an action, regardless of form, arising
out of this Agreement more than two years after the cause of action has arisen
or the date such cause of action was or should have been discovered.
17.11 COUNTERPARTS
This Agreement shall be executed in duplicate counterparts. Each
such counterpart shall be an original, and both together shall constitute but
one and the same document.
17.12 GOVERNING LAW
This Agreement shall be governed by the laws in effect in the
Province of Ontario. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
17.13 SURVIVAL, BINDING NATURE AND ASSIGNMENT
Any terms of this Agreement which by their nature extend beyond
its expiration or termination remain in effect until fulfilled. This Agreement
will be binding on the Parties and their respective successors and permitted
assigns. For purposes of this Agreement, a change in Control of a Party or a
sale of all or substantially all of the assets of a Party shall be deemed an
assignment of this Agreement, provided that a change in Control of OTI shall be
deemed an assignment only if the change results in OTI being controlled by a
competitor of IBM or its Affiliates.
Neither Party may, or will have the power to, assign this
Agreement without the prior written consent of the other which will not be
unreasonably withheld, except that either Party may assign its rights and
obligations under this Agreement, without the approval of the other, to an
Affiliate which expressly assumes such Party's obligations and responsibilities
hereunder, provided that the assigning Party remains fully liable for and shall
not be relieved from the full performance of all obligations under this
Agreement. Any Party assigning its rights or obligations to an Affiliate in
accordance with this Agreement shall within a reasonable period following such
assignment, provide written notice thereof to the other Party together with a
copy of the assignment document. Notwithstanding the foregoing, IBM's rights to
payments under this Agreement shall be freely assignable without the consent of
OTI.
40
<PAGE> 46
Any attempted assignment that does not comply with the terms of
this Section shall be null and void. In the event a change in Control of OTI
results in OTI being controlled by a competitor of IBM or its Affiliates, IBM
may at IBM's sole option, and on reasonable notice to OTI, terminate this
Agreement and OTI shall pay IBM the Termination Charge and other amounts
specified in Section 10.1.
17.14 NOTICES
a. Under this Agreement whenever one Party is required or
permitted to give notice to the other, such notice will be deemed given
when delivered by hand, one day after being given to an express courier
with a reliable system for tracking delivery, or five days after the
date of mailing, when mailed through Canada Post, registered or
certified mail, return receipt requested, postage prepaid, or when sent
by facsimile (with proof of transmission) and thereafter delivered by
one of the foregoing methods of delivery.
b. Notifications will be addressed as follows:
1. For termination, breach or default, notify
In the case of IBM:
IBM Project Executive
245 Consumers Road
Toronto, Ont. M2J 1R3
Facsimile: (416) 490-4730
with a copy to:
IBM General Counsel
3600 Steeles Avenue East
Markham, Ont. L3R 9Z7
2. For all other notices:
In the case of IBM:
IBM Project Executive
245 Consumers Road
Toronto, Ont. M2J 1R3
Facsimile: (416) 490-4730
In the case of OTI:
OTI Project Executive
10 Exchange Place, 12th fl.
Jersey City, NJ 07302
Facsimile: (201) 946-9413
41
<PAGE> 47
Either Party hereto may from time to time change its address for
notification purposes by giving the other prior written notice of the new
address and the date upon which it will become effective.
17.15 NO THIRD-PARTY BENEFICIARIES
Except as specified in Section 11 with respect to either Party's
contractors or subcontractors, the Parties do not intend, nor will any clause be
interpreted, to create for any third party any obligations to or benefit from
either IBM or OTI.
17.16 OTHER DOCUMENTS
On or after the Commencement Date and the date(s) of any
amendments or revisions hereto and at the request of the other Party, each Party
shall furnish to the other such certificate of its secretary, certified copy of
resolutions of its board of directors, or opinion of its counsel as shall
evidence that this Agreement or any amendment or revision hereto has been duly
executed and delivered on behalf of such Party.
During the Term, and at the reasonable request of the other
Party, each Party shall furnish to the other a certificate stating that:
1. this Agreement is in full force and effect; and
2. the other Party is not materially in breach hereof at such
time.
The Parties will execute and deliver or cause to be delivered
such further documents as may reasonably be required for the purposes of
assuring and confirming the rights hereby created or for facilitating the
performance of the terms of the Agreement.
17.17 HEADINGS
All headings herein and the table of contents are not to be
considered in the construction or interpretation of any provision of this
Agreement. This Agreement was drafted with the joint participation of both
Parties and shall be construed neither against nor in favor of either, but
rather in accordance with the fair meaning thereof. In the event of any apparent
conflicts or inconsistencies between this Agreement or any Schedules, Exhibits
or other Attachments to this Agreement, to the extent possible so as to make
them consistent, and if such is not possible, the provisions of this Agreement
shall prevail.
42
<PAGE> 48
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT,
UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE
PARTIES AGREE THAT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
THE PARTIES RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THIS AGREEMENT, AND 2)
ITS SCHEDULES, INCLUDING THOSE MADE EFFECTIVE BY THE PARTIES IN THE FUTURE. THIS
STATEMENT OF THE AGREEMENT SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS.
<TABLE>
<S> <C>
Accepted by: Accepted by:
IBM CANADA LIMITED OPTIMARK TECHNOLOGIES INC.
By /s/ Paul Richards By /s/ William Adiletta
---------------------------------- ---------------------------------
Authorized Signature Authorized Signature
Paul Richards May 6, 1999 William Adiletta May 6, 1999
------------------------------------- -------------------------------------
Name (Type or Print) and Date Name (Type or Print) and Date
3600 Steeles Avenue East 10 Exchange Place, 12th fl.
----------------------------- -----------------------------
Address Address
Markham, Ontario Jersey City, N.J.
---------------------------------------- ------------------------------------
</TABLE>
43
<PAGE> 49
IBM/OPTIMASK TECHNOLOGIES INC.
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
SCHEDULE A
<TABLE>
<CAPTION>
APPLICATIONS SOFTWARE
---------------------------------------------------------------------------------------------------
TANDEM K20012 OPS
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR APPLICATION NAME/DESCRIPTION RESPONSIBILITY
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
1 ISM OPS/Order Processing System Version 2.6.2a IBM OTI OTI OTI
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
TANDEM K20004
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR APPLICATION NAME/DESCRIPTION RESPONSIBILITY
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
1 TBD To be determined (TBD) OTI OTI OTI OTI
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 4100 DISTRIBUTION SERVER #1, #2, #3, #4
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR APPLICATION NAME/DESCRIPTION RESPONSIBILITY
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
1 ISM Distribution Server Version 2.5.0.g IBM OTI OTI OTI
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 4100 AUDIT SERVER #1, #2
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR APPLICATION NAME/DESCRIPTION RESPONSIBILITY
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
1 OTI Audit Server Version 5.6.0.g IBM/OTI OTI OTI OTI
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 8400 MEC #1, #2, #3, #4, #5
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR APPLICATION NAME/DESCRIPTION RESPONSIBILITY
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
1 OTI Matching Engine Complex Version 5.6.4.a IBM OTI OTI OTI
---------------------------------------------------------------------------------------------------
</TABLE>
Notes:
(1) "Oper" means Systems/Operations Responsibilities, as defined in Schedule E,
for the Application Software listed in this Schedule.
(2) "Fin" means financial responsibility for License fees, maintenance charges,
and any other related charges for the Application Software listed in this
Schedule.
(3) "Maint" means maintenance responsibility, including applying fixes,
corrections, and minor enhancements (but not necessarily the financial
responsibility for such) for the Application Software listed in this Schedule.
(4) "Dev" means development responsibility, including the programming of any;
regulatory/statutory mandated changes, version upgrades, or major enhancements
for the Application Software listed in this Schedule.
"TBD" means to be determined, the Application Name/Description and Vendor are
unknown at this time.
"OTI" means OptiMark Technologies Inc.
Schedule A 44
<PAGE> 50
SCHEDULE B
SYSTEMS SOFTWARE
B.1 SYSTEMS SOFTWARE SUPPLIED BY IBM
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
TANDEM K20012 OPS
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Tandem SA73 Nonstop Kernel Version D43 IBM IBM TBD no
---------------------------------------------------------------------------------------------------
2 Tandem SA57 Expand IBM IBM TBD no
---------------------------------------------------------------------------------------------------
3 Tandem SA58 Nonstop TS/MP IBM IBM TBD no
---------------------------------------------------------------------------------------------------
4 Tandem SA59 Pathway/TS IBM IBM TBD no
---------------------------------------------------------------------------------------------------
5 Tandem SD20 TANDEM TCP/IP IBM IBM TBD no
---------------------------------------------------------------------------------------------------
6 Tandem SD70 TCP/IP Lan Print Spooler IBM IBM TBD no
---------------------------------------------------------------------------------------------------
7 Tandem 9255 K- IBM IBM IBM TBD no
Series C Compiler
---------------------------------------------------------------------------------------------------
8 Tandem 9257 COBOL85 Nonstop System IBM IBM TBD no
---------------------------------------------------------------------------------------------------
9 Tandem 9407 IXF-Host Software IBM IBM TBD no
---------------------------------------------------------------------------------------------------
10 Tandem SA01 Basic Operations Management IBM IBM TBD no
Package
---------------------------------------------------------------------------------------------------
11 Tandem SE08 Nonstop VHS - Virtual Home IBM IBM TBD no
Terminal
---------------------------------------------------------------------------------------------------
12 Tandem SE05 Object Monitoring Facility (OMF) IBM IBM TBD no
---------------------------------------------------------------------------------------------------
13 Tandem SE04 EMS Analyzer IBM IBM TBD no
---------------------------------------------------------------------------------------------------
14 Tandem 9750 Safeguard IBM IBM TBD no
---------------------------------------------------------------------------------------------------
15 Tandem SJ44 DSM/SCM-Central (DELPHI) IBM IBM TBD no
---------------------------------------------------------------------------------------------------
16 Tandem SA05 DSM/TC Dist. Sys Mgmt-Tape IBM IBM TBD no
Catalog
---------------------------------------------------------------------------------------------------
17 Tandem SA25 Security Event Exit (SEE) IBM IBM TBD no
---------------------------------------------------------------------------------------------------
18 Tandem SH80 Tim Kit For PC and Compatible IBM IBM TBD no
---------------------------------------------------------------------------------------------------
19 Tandem SJ80 Peer Networks Subagent Toolkit IBM IBM TBD no
---------------------------------------------------------------------------------------------------
20 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
21 * * IBM IBM IBM No
---------------------------------------------------------------------------------------------------
22 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule B 1
April 30, 1999
<PAGE> 51
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
TANDEM K20004
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Tandem SA73 Nonstop Kernel Version D43 IBM IBM TBD no
---------------------------------------------------------------------------------------------------
2 Tandem SA57 Expand IBM IBM TBD no
---------------------------------------------------------------------------------------------------
3 Tandem SA58 Nonstop TS/MP IBM IBM TBD no
---------------------------------------------------------------------------------------------------
4 Tandem SA59 Pathway/TS IBM IBM TBD no
---------------------------------------------------------------------------------------------------
5 Tandem SD20 TANDEM TCP/IP IBM IBM TBD no
---------------------------------------------------------------------------------------------------
6 Tandem SD70 TCP/IP Lan Print Spooler IBM IBM TBD no
---------------------------------------------------------------------------------------------------
7 Tandem 9255 K-Series C Compiler IBM IBM TBD no
---------------------------------------------------------------------------------------------------
8 Tandem 9257 COBOL85 Nonstop System IBM IBM TBD no
---------------------------------------------------------------------------------------------------
9 Tandem 9407 IXF-Host Software IBM IBM TBD no
---------------------------------------------------------------------------------------------------
10 Tandem SA01 Basic Operations Management IBM IBM TBD no
Package
---------------------------------------------------------------------------------------------------
11 Tandem SE08 Nonstop VHS - Virtual Home IBM IBM TBD no
Terminal
---------------------------------------------------------------------------------------------------
12 Tandem SE05 Object Monitoring Facility (OMF) IBM IBM TBD no
---------------------------------------------------------------------------------------------------
13 Tandem SE04 EMS Analyzer IBM IBM TBD no
---------------------------------------------------------------------------------------------------
14 Tandem 9750 Safeguard IBM IBM TBD no
---------------------------------------------------------------------------------------------------
15 Tandem SJ44 MSWSCM-Central (DELPHI) IBM IBM TBD no
---------------------------------------------------------------------------------------------------
16 Tandem SA05 DSM/TC Dist. Sys Mgmt-Tape IBM IBM TBD no
Catalog
---------------------------------------------------------------------------------------------------
17 Tandem SA25 Security Event Exit (SEE) IBM IBM TBD no
---------------------------------------------------------------------------------------------------
18 Tandem SH80 Tim Kit For PC and Compatible IBM IBM TBD no
---------------------------------------------------------------------------------------------------
19 Tandem SJ80 Peer Networks Subagent Toolkit IBM IBM TBD no
---------------------------------------------------------------------------------------------------
20 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
21 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
22 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 8400 MEC #1
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 DEC QA-MT4AA-H8 DEC UNIX Digital Alpha IBM IBM IBM no
Operating System Version 4.0B,
Licensed Binaries and documentation
on compact disk
---------------------------------------------------------------------------------------------------
2 DEC QB-5RYAQ-AA Storageworks software IBM IBM IBM no
plus package
---------------------------------------------------------------------------------------------------
3 DEC Digital UNIX base Advsvr license IBM IBM IBM no
---------------------------------------------------------------------------------------------------
4 DEC Digital UNIX unlimited user license, IBM IBM IBM no
server extension license
---------------------------------------------------------------------------------------------------
5 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule B 2
April 30, 1999
<PAGE> 52
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 8400 MEC #2, #3, #4, #5
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 DEC DEC UNIX Digital Alpha Operating IBM IBM IBM no
System Version 4.0B
---------------------------------------------------------------------------------------------------
2 DEC QB-5RYAQ-AA Storageworks Software IBM IBM IBM no
plus package
---------------------------------------------------------------------------------------------------
3 DEC Digital UNIX base Advsvr license IBM IBM IBM no
---------------------------------------------------------------------------------------------------
4 DEC Digital UNIX unlimited user license, IBM IBM IBM no
server extension license
---------------------------------------------------------------------------------------------------
5 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 4100 AUDIT SERVER #1, AUDIT SERVER #2
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 DEC DEC UNIX Digital UNIX version 4.0B IBM IBM IBM no
unlimited UNIX license, Serverworks
---------------------------------------------------------------------------------------------------
2 DEC QB-5JCAB-SA Storageworks Raid Array IBM IBM IBM no
Controller software 450 V5.1
---------------------------------------------------------------------------------------------------
3 DEC QB-5RYAG-AA Storageworks Software IBM IBM IBM no
Plus Package
---------------------------------------------------------------------------------------------------
4 DEC QB-05SAG-AA Trucluster avail. Server IBM IBM IBM no
for Digital UNIX Alpha (License and
Kit)
---------------------------------------------------------------------------------------------------
5 DEC QL-05SAB-AA Trucluster avail. Server IBM IBM IBM no
for Digital UNIX Alpha (Traditional
license)
---------------------------------------------------------------------------------------------------
6 DEC QA-05SAA-GZ Trucluster avail. Server IBM IBM IBM no
for Digital UNIX Alpha (Doc. Kit)
---------------------------------------------------------------------------------------------------
7 DEC QL-04UAL-3B Polycenter Network Save IBM IBM IBM no
and Restore (NSR) Jukebox 1
---------------------------------------------------------------------------------------------------
8 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 4100 DISTRIBUTION SERVER #1, #2
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 DEC DEC UNIX Digital UNIX version 4.0B IBM IBM IBM no
unlimited UNIX license, Serverworks
---------------------------------------------------------------------------------------------------
2 DEC QA-054AA-H8 UNIX Software Library IBM IBM IBM no
LP's cdrom
---------------------------------------------------------------------------------------------------
3 DEC QB- 5RYAG-AA Storageworks Software IBM IBM IBM no
Plus Package
---------------------------------------------------------------------------------------------------
4 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule B 3
April 30, 1999
<PAGE> 53
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
DEC ALPHA 4100 DISTRIBUTION SERVER #3, #4
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 DEC DEC UNIX Digital UNIX version 4.0B IBM IBM IBM no
unlimited UNIX license, Serverworks
---------------------------------------------------------------------------------------------------
2 DEC QA-054AA-H8 UNIX Software Library IBM IBM IBM no
LP's cdrom
---------------------------------------------------------------------------------------------------
3 DEC Q8-5RYAG-AA Storage works Software IBM IBM IBM no
Plus Package
---------------------------------------------------------------------------------------------------
4 * * IBM IBM IBM no
---------------------------------------------------------------------------------------------------
</TABLE>
*
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
OEM NETWORK MANAGEMENT SOFTWARE
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Cisco Systems IBM CISCO 2514 Firewall Routers - IBM IBM IBM no
Inc. Version 11.0(10)C
---------------------------------------------------------------------------------------------------
</TABLE>
*
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule B 4
April 30, 1999
<PAGE> 54
B.2 SYSTEMS SOFTWARE SUPPLIED BY OTI
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
TANDEM K20012 PRODUCTION
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 * * OTI OTI OTI no
---------------------------------------------------------------------------------------------------
2 * * OTI OTI OTI no
---------------------------------------------------------------------------------------------------
3 Compaq Non-stop Support Access for IBM OTI OTI OTI
Networking
---------------------------------------------------------------------------------------------------
4 Shareware Network Time Protocol (shareware IBM OTI OTI OTI
modified by OTI)
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
TANDEM K20004
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 * * OTI OTI OTI no
---------------------------------------------------------------------------------------------------
2 * * OTI OTI OTI no
---------------------------------------------------------------------------------------------------
3 Compaq Non-stop Support Access for IBM OTI OTI OTI
Networking
---------------------------------------------------------------------------------------------------
4 Shareware Network Time Protocol (shareware IBM OTI OTI OTI
modified by OTI)
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
OTI NETWORK CONTROL EQUIPMENT
---------------------------------------------------------------------------------------------------
RESPONSIBILITY
---------------------------------------------------------------------------------------------------
ITEM NO. VENDOR SOFTWARE NAME/DESCRIPTION OPER FIN MAINT DEV
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 Cisco Systems Cisco Catalyst Model 5513 - Software IBM OTI OTI no
Inc. Version 2.4(3) for switch and
11.2(7)P for the RSM blades
---------------------------------------------------------------------------------------------------
2 Cisco Systems Cisco Local Director - Software IBM OTI OTI no
Inc. Version 1.6.3
---------------------------------------------------------------------------------------------------
</TABLE>
Notes:
1 "Oper" means Systems/Operations Responsibilities, as defined in Schedule E,
for the System Software listed in this Schedule.
2 "Fin" means financial responsibility for License fees, maintenance charges,
and any other related charges for the System Software listed in this Schedule.
3 "Maint" means maintenance responsibility, including applying fixes,
corrections, and minor enhancements (but not necessarily the financial
responsibility for such) for the System Software listed in this Schedule.
4 "Dev" means development responsibility, including the programming of any
regulatory/statutory mandated changes, version upgrades, or major enhancements
for the Systems Software listed in this Schedule.
"TBD" means to be determined, the maintenance responsibility (financial charge)
has not been included in the Services at this time.
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule B 5
April 30, 1999
<PAGE> 55
"OTI" means OptiMark Technologies Inc.
Schedule B 6
April 30, 1999
<PAGE> 56
SCHEDULE C
OTI MACHINES OWNED/LEASED
This Schedule lists the Machines that OTI owns, leases or rents and which IBM
"requires in order to provide the processing Services" under this Agreement.
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
NETWORK EQUIPMENT
---------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 Cisco Catalyst 5000 Model 5513 * IBM Data Center *
---------------------------------------------------------------------------------------------------
2 Cisco Catalyst 5000 Model 5513 * IBM Data Center *
---------------------------------------------------------------------------------------------------
3 Cisco Local Director * IBM Data Center *
---------------------------------------------------------------------------------------------------
4 Cisco Local Director * IBM Data Center *
---------------------------------------------------------------------------------------------------
5 Cisco 7500 Router Model 7507 * IBM Data Center *
---------------------------------------------------------------------------------------------------
6 Cisco 7500 Router Model 7507 * IBM Data Center *
---------------------------------------------------------------------------------------------------
7 Cisco 7500 Router Model 7507 * IBM Data Center *
---------------------------------------------------------------------------------------------------
8 Cisco 7500 Router Model 7507 * IBM Data Center *
---------------------------------------------------------------------------------------------------
9 Tellabs 8003 Power Model 81-8003 * IBM Data Center *
Rack Supply
---------------------------------------------------------------------------------------------------
10 Telect Patch Panel IBM Data Center *
---------------------------------------------------------------------------------------------------
11 Telco Modem Rack IBM Data Center *
---------------------------------------------------------------------------------------------------
12 ADC Kentrox Power * IBM Data Center *
72071
---------------------------------------------------------------------------------------------------
13 Orion 4000/5 * IBM Data Center *
Broadband Access MUX
---------------------------------------------------------------------------------------------------
14 OR4K-MISC B-T * IBM Data Center *
---------------------------------------------------------------------------------------------------
15 OR4K-DS1 * IBM Data Center *
---------------------------------------------------------------------------------------------------
16 Motorola Modem DDDS/MR64 IBM Data Center *
---------------------------------------------------------------------------------------------------
17 Tellabs 8003 Power Model 81-8003 * IBM Data Center *
Rack Supply
---------------------------------------------------------------------------------------------------
18 Telect Patch Panel IBM Data Center *
---------------------------------------------------------------------------------------------------
19 Telco Modem Rack IBM Data Center *
---------------------------------------------------------------------------------------------------
20 ADC Kentrox Power * IBM Data Center *
72071
---------------------------------------------------------------------------------------------------
</TABLE>
---------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule C 1
April 30, 1999
<PAGE> 57
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
21 Orion 4000/5 Broadband Access MUX * IBM Data Center *
22 OR4K-MISC B-T * IBM Data Center *
23 OR4K-DS1 * IBM Data Center *
24 Motorola Modem DDDS/MR64 IBM Data Center *
25 Argus RSM Rectifier * IBM Data Center *
26 Westell DS1 Mounting Rack 31M1-19 IBM Data Center *
27 Tehtec Rectifier (Bell Telco) IBM Data Center *
28 Bell Modem Rack (T1) IBM Data Center *
29 Bell Model Rack T1) IBM Data Center *
30 Mactel FOTS-412 IBM Data Center *
</TABLE>
OptiMark Equipment List
* [7 pages of descriptions]
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule C
April 30, 1999
<PAGE> 58
SCHEDULE D
SERVICES MACHINES OWNED/LEASED BY IBM
This Schedule lists the Machines that IBM owns, leases or rents that are located
in the Data Center and are "required by IBM to provide the processing Services"
under this Agreement.
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
------------------------------------------------------------------------------------------------------------------------------
1 Tandem K20004 * IBM Data Center see
configuration
below
------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- --------- --------
<S> <C> <C> <C> <C>
Tandem K20000 SERVER PKG, 4 PROC, 128MB EACH 1 IBM IBM
ES24-256 SUBST, K20000,256MB FOR 128MB,SINGLE 4 IBM IBM
7177D DEL,CAB,MF-8 I/O,K10K/K20K PKG SYS 1 IBM IBM
3615-0S CNTRLR,HI-PERF,E-NET,W/O TRANS 4 IBM IBM
7907-4 CAB,MULTICHANNEL O, 4 CHANNEL PAIRS 1 IBM IBM
7159 PEDESTAL, MSS,FOR 455MOD 1 IBM IBM
7158 FRAME,MSS,FOR 455MOD 1 IBM IBM
455MOD8 DISK MODULE, 8 SLOT 2 IBM IBM
4571-16 4GB DISK CRU 16 PACK 1 IBM IBM
3129 CONTROLLER,DISK,FOR 455MOD 4 IBM IBM
F9-50 SUBST,F/O CBL,1 X 50M FOR 1 X 10M 5 IBM IBM
7155 POWER STRIP,4 WAY, 60HZ 220V,W/4500 2 IBM IBM
5175 TAPE DRIVE,1600/6250 BPI,MODULAR SYS 1 IBM IBM
3214 CONTROLLER,TAPE,DEDICATED,COPPER 1 IBM IBM
517-050 SUBST,CBL,50'- FOR DEF,516X/517X,5410 1 IBM IBM
3216 CONTROLLER,FIBRE OPTIC,519X 1 IBM IBM
5196ACL TAPE,SUBSYS,CARTRIDGE IN MOSAIC,ACL 1 IBM IBM
5194ACL TAPE,SUBSYS,CARTRIDGE CRU WTH ACL 1 IBM IBM
3606-1 CNTRLR COMM, 16 LINE ASYNC W/RS-232 1 IBM IBM
3605-1 CONTRLR COMM, 4 LINE SYNC W/RS-232 1 IBM IBM
3601 CNTRLR,LINE PRINTER/UNIV INTERFACE 1 IBM IBM
KC14 STANDARD SYSTEM CONSOLE 15" MON 1 IBM IBM
361-0S SUBST, 3615-0 FOR 3615-1 1 IBM IBM
517-010W CBL,COPPER,516X/517X,5410,10' 1 IBM IBM
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
1
<PAGE> 59
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
---------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------------------------------------
2 Tandem K20012 OPS * IBM Data Center see
configuration
below
---------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- --------- --------
<S> <C> <C> <C> <C>
Tandem K20000 SERVER PKG, 12 PROC, 128MB EACH 1 IBM IBM
ES24-256 SUBST, K20000,256MB FOR 128MB,SINGLE 12 IBM IBM
7177D DEL,CAB,MF-8 I/O,K10K/K20K PKG SYS 1 IBM IBM
3615-0 CNTRLR,HI-PERF,E-NET,W/O TRANS 7 IBM IBM
7907-4 CAB,MULTICHANNEL I/O, 4 CHANNELPAIRS 2 IBM IBM
7907-2 CAB MULTICHANNEL I/O 2 IBM IBM
7159 PEDESTAL, MSS,FOR 455MOD 6 IBM IBM
7158 FRAME,MSS,FOR 455MOD 1 IBM IBM
455MOD8 DISK MODULE, 8 SLOT 6 IBM IBM
4571-16 4GB DISK CRU 16 PACK 12 IBM IBM
3129 CONTROLLER, DISK,FOR 455MOD 12 IBM IBM
F9-50 SUBST,F/O CBL,1 X 50M FOR 1 X 10M 6 IBM IBM
7155 POWER STRIP,4 WAY, 60HZ 220V,W/4500 1 IBM IBM
5175 TAPE DRIVE,1600/6250 BPI,MODULAR SYS 1 IBM IBM
3214 CONTROLLER,TAPE,DEDICATED,COPPER 1 IBM IBM
517-050 SUBST,CBL,50' FOR DEF,516X/517X,5410 1 IBM IBM
3216 CONTROLLER,FIBRE OPTIC,519X 1 IBM IBM
5196ACL TAPE,SUBSYS,CARTRIDGE IN MOSAIC,ACL 1 IBM IBM
5194ACL TAPE,SUBSYS,CARTRIDGE CRU WTH ACL 1 IBM IBM
3606-1 CNTRLR COMM, 16 LINE ASYNC W/RS-232 1 IBM IBM
3605-1 CONTRLR COMM, 4 LINE SYNC W/RS-232 1 IBM IBM
3601 CNTRLR,LINE PRINTER/UNIV INTERFACE 1 IBM IBM
KC14 STANDARD SYSTEM CONSOLE 15" MON 1 IBM IBM
361-0S SUBST, 3615-0 FOR 3615-1 1 IBM IBM
517-010W CBL,COPPER,516X/517X,5410,10' 1 IBM IBM
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
2
<PAGE> 60
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
----------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
----------------------------------------------------------------------------------------------------------------------------------
3 DEC Alpha 8400 MEC #1 DA-292FF-CA * IBM Data Center see
configuration
below
----------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- --------- --------
<S> <C> <C> <C>
Dec Cabinet # 1 (Alpha 8400)
----------------------------
DA-292FF-CA ALPHASERVER 8400/8500 5/625
DUAL PROC. SYSTEM 1 IBM IBM
756P2-AX ALPHASERVER 8000 DUAL PROCESSOR
5/625 SMP UPGRADE 6 IBM IBM
DWLPB-AA 12 SLOT PCI PLUG IN UNIT:
ALPHASERVER 8400 MAIN CAB. 1 IBM IBM
DS-RZ1CB-VW ULTRASCSI DISK DRIVE 3 IBM IBM
BN21K-03 SCSI-3 3 METER STANDARD "P"
CABLE-68 CONDUCTORS 1 IBM IBM
DE500-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
TLZ09-VA 4/8 GB 4MM SCSI DAT TAPE DRIVE,
SBB 1 IBM IBM
VT510-AA PC TEXT TERMINAL, SINGLE
SESSION, MONOCHROME 1 IBM IBM
LK47W-A2 PS/2 STYLE KEYBOARD 1 IBM IBM
BA35X-HG 150-W 48-V DC INPUT POWER SUPPLY 2 IBM IBM
H7263-AC 3 PHASE POWER REGULATOR W/O
BATTERY B/U FEATURE 2 IBM IBM
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
3
<PAGE> 61
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
----------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
----------------------------------------------------------------------------------------------------------------------------------
4 DEC Alpha 8400 MEC # 2 DA-292FF-CA * IBM Data Center see
configuration
below
----------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- -------- ---------
Dec Cabinet # 2 (Alpha 8400)
----------------------------
<S> <C> <C> <C>
DA-292FF-CA ALPHASERVER 8400/8500 5/625
DUAL PROC. SYSTEM 1 IBM IBM
756P2-AX ALPHASERVER 8000 DUAL PROCESSOR
5/625 SMP UPGRADE 6 IBM IBM
DWLPB-AA 12 SLOT PCI PLUG IN UNIT:
ALPHASERVER 8400 MAIN CAB. 1 IBM IBM
DS-RZ1CB-VW ULTRASCSI DISK DRIVE 3 IBM IBM
BN21K-03 SCSI-3 3 METER STANDARD "P"
CABLE-68 CONDUCTORS 1 IBM IBM
DE500-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
TLZ09-VA 4/8 GB 4MM SCSI DAT TAPE DRIVE,
SBB 1 IBM IBM
VT510-AA PCTEXT TERMINAL, SINGLE
SESSION, MONOCHROME 1 IBM IBM
LK47W-A2 PS/2 STYLE KEYBOARD 1 IBM IBM
BA35X-HG 150-W 48-V DC INPUT POWER SUPPLY 2 IBM IBM
H7263-AC 3 PHASE POWER REGULATOR W/O
BATTERY B/U FEATURE 2 IBM IBM
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
4
<PAGE> 62
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
---------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------------------------------------
5 DEC Alpha 8400 MEC # 3 DA-292FF-CA * IBM Data Center see
configuration
below
---------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor Model (Feature Code) Quantity Provider Provider
--------------------------- -------- ---------- --------
Dec Cabinet # 3 (Alpha 8400)
----------------------------
<S> <C> <C> <C>
DA-292FF-CA ALPHASERVER 8400/8500 5/625
DUAL PROC. SYSTEM 1 IBM IBM
756P2-AX ALPHASERVER 8000 DUAL PROCESSOR
5/625 SMP UPGRADE 6 IBM IBM
DWLPB-AA 12 SLOT PCI PLUG IN UNIT:
ALPHASERVER 8400 MAIN CAB. 1 IBM IBM
DS-RZ1CB-VW ULTRASCSI DISK DRIVE 3 IBM IBM
BN21K-03 SCSI-3 3 METER STANDARD "P"
CABLE-68 CONDUCTORS 1 IBM IBM
DE500-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
TLZ09-VA 4/8 GB 4MM SCSI DAT TAPE DRIVE,
SBB 1 IBM IBM
VT510-AA PCTEXT TERMINAL, SINGLE
SESSION, MONOCHROME 1 IBM IBM
LK47W-A2 PS/2 STYLE KEYBOARD 1 IBM IBM
BA35X-HG 150-W 48-V DC INPUT POWER SUPPLY 2 IBM IBM
H7263-AC 3 PHASE POWER REGULATOR W/O
BATTERY B/U FEATURE 2 IBM IBM
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
5
<PAGE> 63
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
---------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------------------------------------
6 DEC Alpha 8400 MEC # 4 DA-292FF-CA * IBM Data Center see
configuration
below
---------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- --------- ---------
Dec Cabinet # 4 (Alpha 8400)
----------------------------
<S> <C> <C> <C>
DA-292FF-CA ALPHASERVER 8400/8500 5/625
DUAL PROC. SYSTEM 1 IBM IBM
756P2-AX ALPHASERVER 8000 DUAL PROCESSOR
5/625 SMP UPGRADE 6 IBM IBM
DWLPB-AA 12 SLOT PCI PLUG IN UNIT:
ALPHASERVER 8400 MAIN CAB. 1 IBM IBM
DS-RZ1CB-VW ULTRASCSI DISK DRIVE 3 IBM IBM
BN21K-03 SCSI-3 3 METER STANDARD "P"
CABLE-68 CONDUCTORS 1 IBM IBM
DE500-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
TLZ09-VA 4/8 GB 4MM SCSI DAT TAPE DRIVE,
SBB 1 IBM IBM
VT510-AA PC TEXT TERMINAL, SINGLE
SESSION, MONOCHROME 1 IBM IBM
LK47W-A2 PS/2 STYLE KEYBOARD 1 IBM IBM
BA35X-HG 150-W 48-V DC INPUT POWER SUPPLY 2 IBM IBM
H7263-AC 3 PHASE POWER REGULATOR W/O
BATTERY B/U FEATURE 2 IBM IBM
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
6
<PAGE> 64
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
---------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------------------------------------
7 DEC Alpha 8400 MEC # 5 DA-292FF-CA * IBM Data Center see
configuration
below
---------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- --------- --------
Dec Cabinet # 5 (Alpha 8400)
----------------------------
<S> <C> <C> <C>
DA-292FF-CA ALPHASERVER 8400/8500 5/625
DUAL PROC. SYSTEM 1 IBM IBM
756P2-AX ALPHASERVER 8000 DUAL PROCESSOR
5/625 SMP UPGRADE 6 IBM IBM
DWLPB-AA 12 SLOT PCI PLUG IN UNIT:
ALPHASERVER 8400 MAIN CAB. 1 IBM IBM
DS-RZ1CB-VW ULTRASCSI DISK DRIVE 3 IBM IBM
BN21K-03 SCSI-3 3 METER STANDARD "P"
CABLE-68 CONDUCTORS 1 IBM IBM
DE500-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
TLZ09-VA 4/8 GB 4MM SCSI DAT TAPE DRIVE,
SBB 1 IBM IBM
VT510-AA PCTEXT TERMINAL, SINGLE
SESSION, MONOCHROME 1 IBM IBM
LK47W-A2 PS/2 STYLE KEYBOARD 1 IBM IBM
BA35X-HG 150-W 48-V DC INPUT POWER SUPPLY 2 IBM IBM
H7263-AC 3 PHASE POWER REGULATOR W/O
BATTERY B/U FEATURE 2 IBM IBM
------------------------------------------------------------------------------- -------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
7
<PAGE> 65
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
---------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------------------------------------
8 DEC Alpha 4100 X#2 DA-51-JAB-EB * IBM Data Center see
Audit Server # 1, #2 configuration
below
---------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Vendor/Model (Feature Code) Quantity Provider Provider
--------------------------- -------- --------- --------
Dec Cabinet # 6 (Alpha 4100)
----------------------------
<S> <C> <C> <C>
DA-51JAB-EB ALPHASERVER 4100 5/466 DRAWER -
DIGITAL UNIX 2 IBM IBM
H9A10 EL ALHPASERVER 4000/4100 RETMA
CABINET 1 IBM IBM
CK-BA30A-BA RM KIT FOR ALPHASERVER 4100 2 IBM IBM
KN304-DB ALPHA 4100/4000 466 MHZ DIGITAL
UNIX SMP UPGRADE 6 IBM IBM
H7291-AA AS4XXX 450 WATT POWER SUPPLY 2 IBM IBM
DE500-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
SN-VRCX5-WA 15"AUTO-SCANNING COLOR
MONITOR 2 IBM IBM
BA36R-RA STORAGEWORKS SHELF/RETMA 7
DEVICE 4 IBM IBM
BN21H-02 2 METER CABLE (SCSI-2 HIGH DENSITY) 4 IBM IBM
BA35X-HF UNIVERSAL AC POWER SUPPLY (150 W) 6 IBM IBM
HSZ52-AF STORAGEWORKS 64MB DUAL SCSI
ARRAY CONTROLLERS 1 IBM IBM
BA35R-MR RACKMOUNT BA35R-MA, STORAGE
CONTROLLER SHELF 1 IBM IBM
KZPSA-BB STORAGE PCI HOST BUS ADAPTER
(FWD) 2 IBM IBM
DS-RZ1CB-VW ULTRASCSI DISK DRIVE 25 IBM IBM
H879-AA SCSI-3 TERMINATOR 68 PIN MALE
CONNECTOR 2 IBM IBM
BA35X-ME ACTIVE TERMINATOR, 16-BIT, SCSI-2
FOR BA346/BA345 1 IBM IBM
BN21K-02 SCSI-3 2.0 METER STANDARD 'P"
CABLE-68 CONDUCTORS 2 IBM IBM
TZ885-NT 100-GB SCSI TAPE SUBSYSTEM FIVE
CARTRIDGE LOADER 2 IBM IBM
TK875-MA MAGAZINE FOR FIVE CARTRIDGE DLT
LOADER 2 IBM IBM
KZPDA-AA DIGITAL FAST, WIDE, SINGLE-ENDED
SCSI CONTROLLER 2 IBM IBM
B21M-05 CABLE, SCSI-2 5.0 M ADAPTER "A", 50
CONDUCTORS 2 IBM IBM
2T-H7085-BC 4 PORT TABLETOP MASTER
CONSOLE 1 IBM IBM
2T-H7085-20, 20' SPLIT VGA CABLE 2 IBM IBM
2T-H7085-10, 10' SPLIT VGA CABLE 1 IBM IBM
DSRVZ-MC DECSIERVER 900TM ACCESS SERVER 1 IBM IBM
DEHUA-CA SINGLE SLOT DECHUB - ETHERNET
WITH AUI CONNECTOR 1 IBM IBM
H0345-AA 2MG FLASH CARD 1 IBM IBM
20-41141-05 SIMM 1 QUAD CAS 9 CHIPS 80 NS 1 IBM IBM
BN25G-03 CABLE ASSEMBLY, 3 METER 9 IBM IBM
LN17N-CA.LN17PS LASER PRINTER 1 IBM IBM
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
8
<PAGE> 66
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
----------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
----------------------------------------------------------------------------------------------------------------------------------
9 DEC Alpha 4100 X 2 DA-51-JAB-EB * IBM Data Center see
Distribution Server # 1, configuration
# 2 below
----------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Model/Feature Code Quantity Provider Provider
------------------- -------- --------- --------
Dec Cabinet # 7 (Alpha 4100)
----------------------------
<S> <C> <C> <C>
DA-51JAB-EB ALPHASERVER 4100 5/466 DRAWER -
DIGITAL UNIX 2 IBM IBM
H9A10-EL ALHPASERVER 4000/4100 RETMA
CABINET 1 IBM IBM
BA35X-HF UNIVERSAL AC POWER SUPPLY 1 IBM IBM
TLZ09 4MM DAT TAPE DRIVE 4/8 GB 2 IBM IBM
CK-BA30A-BA RM KIT FOR ALPHASERVER 4100 2 IBM IBM
KN304-DB ALPH 4100/4000 466 MHZ DIGITAL UNIX
SMP UPGRADE 6 IBM IBM
H7291-AA AS4XXX 450 WATT POWER SUPPLY 2 IBM IBM
DE600-AA FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 2 IBM IBM
SN-VRCX5-WA 15' AUTO-SCANNING COLOR
MONITOR 2 IBM IBM
DWZZB-VW SCSI-2 CONVERTER, 16 BIT, 20 MB, 68
PIN "P" CONNECTOR 5 IBM IBM
BN27S-03 POWER CORD 3 METERS 8 IBM IBM
BA36R-RA STORAGEWORKS SHELF/RETMA 7
DEVICE 2 IBM IBM
BN21 N-02 2 METER CABLE (SCSI-2 HIGH
DENSITY), "A" CABLE 4 IBM IBM
BA35X-ME ACTIVE TERMINATOR, 16 BIT, SCSI-2
FOR BA346/BA356 1 IBM IBM
DS-RZICB-VW ULTRASCSI DISK DRIVE 7 IBM IBM
BA35X-MG 8-BIT I/O MODULE FOR BA356 SHELF 4 IBM IBM
KZPAA-AA PCI TO SCSI HOST BUS ADPATER 2 IBM IBM
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
9
<PAGE> 67
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------------
MIDRANGE
---------------------------------------------------------------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
---------------------------------------------------------------------------------------------------------------------------------
10 DEC Alpha 4100 X 2 DA-51-JAB-EB * IBM Data Center see
Distribution Server # 3, configuration
# 4 below
---------------------------------------------------------------------------------------------------------------------------------
Hardware Equipment Location
Model/Feature Code Quantity Provider Provider
------------------- -------- --------- --------
Dec Cabinet # 8 (Alpha 4100)
----------------------------
<S> <C> <C> <C>
DA-51 KAC-EB, ALPHASERVER 4100 5/533
DRAWER - DIGITAL UNIX 2 IBM IBM
H9A10-EF, CABINET, 1.7M X 600MM X 900MM 1 IBM IBM
CK-BA30A-BA, RM KIT FOR ALPHASERVER 4100 2 IBM IBM
KN305-DB, ALPHASERVER 4100/4000 533 MHZ SMP
UPGRADE 6 IBM IBM
H7291-AA, AS4XXX 450 WATT POWER SUPPLY 4 IBM IBM
DE500-AA, FAST ETHERWORKS PCI 10/100
NETWORK INTERFACE CARD 4 IBM IBM
BA36R-RD, ASVR 4X00 ULTRA SCSI
STORAGEWORKS SHELF 2 IBM IBM
CK-BA35X-HH, RH ULTRA SCSI SHELF POWER
SUPPLY 2 IBM IBM
BN38C-02, ULTRA 68VHD/6HD 2M CABLE 2 IBM IBM
TLZ09-VA, 8 GB MM SCSI DAT TAPE DRIVE 2 IBM IBM
TLZ07-CB, FIVE-PAK DAT TAPE CARTRIDGES,
4MM 6 IBM IBM
DS-RZ1,CB-VW ULTRASCSI DISK DRIVE 6 IBM IBM
BN21N-02, SGSI-2 2.0 M "A" CABLE 2 IBM IBM
KZPAA-AA, PCI TO SCSI HOST BUS ADAPTER 2 IBM IBM
BX35X-ME, ACTIVE TERMINATOR 1 IBM IBM
BA36R-RA, STORAGEWORKS SHELF/RETMA 7
DEVICE SHELF 1 IBM IBM
2T-H7086-BC, 4 PORT TABLE TOP MASTER
CONSOLE SWITCH 1 IBM IBM
2T-H7085-20, 20' SPLIT VGA CABLE 2 IBM IBM
---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*
-------------------------------
* This confidential portion has been omitted and file separtely with the
Commision.
Schedule D
April 30, 1999
10
<PAGE> 68
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
NETWORK EQUIPMENT
---------------------------------------------------------- ------------------------------------------------------------------------
ITEM NO. MACHINE TYPE MACHINE MODEL MACHINE S/N MACHINE LOCATION NOTES
-----------------------------------------------------------------------------------------------------------------------------------
1 True Time Model 600-301 * IBM Data Center *
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Model 600-301-NTS-100 Network Time Server
FOL-100 Fiber Optic Antenna Link
Model # 144-692 Fiber Optic Link, Serial # 97191896
-----------------------------------------------------------------------------------------------------------------------------------
2 True Time Model 699-401 * IBM Data Center *
-----------------------------------------------------------------------------------------------------------------------------------
Model 600-401 Network Time Server
Model 150 MAU-T-10BaseT Option
-----------------------------------------------------------------------------------------------------------------------------------
3 True Time IBM Data Center IBM provides maintenance
-----------------------------------------------------------------------------------------------------------------------------------
Model 140-014-TNC Lightning Arrestor
Model 151-160 12VDC power supply
Model 142-401 Antenna Down converter
Model 600-301DI Down converter infrastructure
-----------------------------------------------------------------------------------------------------------------------------------
4 Lynx Com Cabinet IBM Data Center
-----------------------------------------------------------------------------------------------------------------------------------
Communications cabinet (x15), Shelf (x15)
-----------------------------------------------------------------------------------------------------------------------------------
5 Cisco 2500 Router Model 2514 * IBM Data Center IBM provides maintenance
------------------------------------------------------------------------------------------------------------------------ ----------
6 Cisco 2500 Router Model 2514 * IBM Data Center IBM provides maintenance
-----------------------------------------------------------------------------------------------------------------------------------
7 IBM 8224-002 16 port hub Model 002 * IBM Data Center *
-----------------------------------------------------------------------------------------------------------------------------------
8 IBM 8224-002 16 port hub Model 002 * IBM Data Center *
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-------------------------
* This confidential portion as been omitted and filed separately with the
Commission.
Schedule D
April 30, 1999
11
<PAGE> 69
SCHEDULE E
SUPPORT SERVICES AND SERVICE LEVELS
SECTION E-1
SUPPORT SERVICES
1.0 INTRODUCTION
This Section E-1 describes the duties and responsibilities of IBM and OTI
related to IBM's provision of the Services. IBM will provide the Services in
accordance with the Service Levels, the descriptions contained in this Schedule
E and the Procedures Manual. OTI will support IBM's preliminary provision of the
Services by performing OTI's duties and responsibilities in accordance with the
descriptions contained in this Schedule E and the Procedures Manual. Until the
Service Levels are established and the Procedures Manual is completed, the
Parties will support the Services in accordance with the informal Service
criteria existing as of the Commencement Date and their respective
responsibilities as described herein. All capitalized terms used but not defined
in this Schedule E shall have the meanings given them in the Agreement and its
Schedules.
IBM will implement a process that will provide a framework for the management
and implementation of additional work requests in the IBM/OTI environment. This
methodology, called the Change Order Process, is the process to be utilized by
IBM and OTI to request, evaluate, prepare proposals and approve additional or
New Services. Any approved Change Orders will result in an amendment to Schedule
E via the Change Order Process.
2.0 DEFINITIONS
The following terms will be used in this Schedule:
Production means the state when OTI is providing services to a substantial
portion of its commercial customer base via the required configuration of
Machines and Software.
Non-Operational means Production Machines and Software are not available for
production use by OTI's End Users, commercial customer base and OTI internal
users.
Wan means the physical infrastructure (communication components and data
circuits) that connect all OTI End Users, commercial customer base and OTI
internal users, to the IBM Data Center via the 4 x Cisco 7507 routers as listed
in Schedule C and Exhibit E-2, Lan Services Responsibilities Matrix - Appendix
N1.
For the purposes of this Schedule E, Launch Day means OTI's target date of
January 25, 1999.
Significant Change means the introduction of any new Service or change that may
have an impact on End Users, Service Levels, access to the Machines or their
operation, except for normal production problem fixes. Significant Changes are
subject to the Change Order Process.
3.0 SUMMARY OF SERVICES
IBM will provide the Services outlined below, as fully described in Sections 5,
6 and 7 of this Schedule E.
*
-------------------------
* This confidential portion has been omitted and file separately with the
Commission.
Schedule E
April 30, 1999
<PAGE> 70
4.0 SYSTEMS MANAGEMENT CONTROLS
IBM will provide to OTI, and IBM and OTI will mutually agree on and use, the
Systems Management Control ("SMC") Procedures for managing information systems
included within the Services. The SMC Procedures, in some combination, are
applicable to all the Services provided and shall be implemented, as
appropriate, for each Service being provided, for each of the Machines. The SMC
Procedures shall be included in the Procedures Manual. In general, IBM's SMC
responsibilities shall include the following processes:
*
5.0 APPLICATIONS SOFTWARE SUPPORT SERVICES
a. APPLICATIONS SOFTWARE SUPPORT
IBM will provide technical support and advice for OTI's Applications Software
development and data base administration personnel according to the following
standards:
*
b. APPLICATIONS SOFTWARE VERIFICATION
It is OTI's responsibility to verify the results of all Applications Software
and provide Applications Software on-line and batch system support for the
Machines and Lan as applicable.
OTI will be responsible for the following:
*
6.0 SYSTEMS/OPERATIONS RESPONSIBILITIES
a. COMPUTER OPERATIONS
*
b. PRODUCTION CONTROL AND OPERATIONS ANALYSIS
*
c. TECHNICAL SERVICES
*
d. SERVICE LEVEL REPORTING
*
e. LAN SERVICES
*
f. APPLICATIONS SOFTWARE PROCESSING
*
-----------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule E
April 30, 1999
<PAGE> 71
7.0 OTHER SERVICES
a. HELP DESK
IBM will provide a SPOC to support IBM's Data Center for the Services Machines
(including the Lan), and the System Software. IBM's Help Desk ("IBM Help Desk"
or "Help Desk") will receive calls from End Users who require assistance in the
resolution of problems, concerns, and questions for the Services Machines
(including the Lan) and System Software to request Services at the Service
Levels set forth in Exhibit E-6.
*
b. DOCUMENTATION
1. IBM shall:
(a) create, update and maintain the Procedures Manual
in consultation with OTI and with OTI's prior
approval of any OTI obligations included therein.
Subsequent changes to any OTI obligations will
also be reviewed and approved by OTI/IBM before
inclusion in the Procedures Manual;
(b) review operations documentation for adherence to
operational procedures and standards;
(c) periodically distribute to OTI, information
bulletins regarding new or changed operations and
procedures;
(d) update and maintain Help Desk documentation.
2. In support of the services, OTI shall:
(a) provide documentation for operations procedures
and processes relating to the Tandem and DEC
Applications Software and other necessary
Machines nd Software (i.e. Secure ID) and IBM
shall include such documentation in the
Procedures Manual.
c. SECURITY
The Parties' security responsibilities with respect to the Services are
specified in Schedule L.
d. MAINTENANCE AGREEMENTS INCLUDING CONTRACTS FOR SERVICES MACHINES
Requirements for maintenance for the Service Machines were initially determined
by OTI as prime systems integrator. During the Measurement Period, IBM will
assess the adequacy of the Contracts listed in Schedule F-3 and other
maintenance agreements for Services Machines and will provide recommendations
for upgrading the existing level of maintenance if IBM considers upgrades
necessary in order to achieve the desired Service Level objectives.
Changes to maintenance agreements for Machines listed in Schedule D shall be
subject to agreement on pricing adjustments. All changes to maintenance will be
subject to the Change Management Procedures.
-----------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule E
April 30, 1999
<PAGE> 72
IBM will be responsible for managing scheduled vendor service calls and for
managing vendor maintenance execution.
e. SUPPLIES SPECIFICATIONS
IBM will provide OTI with the technical and quality specifications for, and the
necessary inventory quantities of, the supplies, if any, required by IBM to
perform the Services.
f. TECHNOLOGY
IBM will assist OTI in the review of vendor proposals affecting IBM's ability to
provide the Services to ensure existing and future systems compatibility with
changing industry standards. IBM will consult with OTI regarding new data
processing systems, as appropriate.
g. SERVICE REVIEW MEETINGS
IBM will coordinate meetings, as required, with OTI and any of IBM's
subcontractors providing Services to review service measurements.
H. ACCOUNT MANAGEMENT
There will be an IBM account management team specified for OTI, whose role is to
coordinate all aspects of the operations and support related to the Services as
defined in Schedule E. The account team will be comprised of a Customer Service
Analyst ("CSA") and Delivery Project Executive ("DPE") and will participate in
the operations, Change Management, Problem Management and performance review
meetings.
The team will be responsible for coordinating the necessary systems support
resources for OTI and will be OTI's interface to the IBM support structure. The
contact listing and organizational structure for the account management team
will be set forth in the Procedures Manual. The account team will participate in
service review meetings with vendors and service providers under contract with
OTI and who interact with IBM on Services relating to this Agreement, as
reasonably requested by OTI.
*
8.0 SERVICES AND PRICING ASSUMPTIONS
The pricing set out in Schedule J and the description of Services and the
Service Levels set out in the Schedule E are based on the following assumptions:
* [4 page description]
9.0 DATA CENTER OPERATIONAL SERVICES AND LAN SERVICES
The Data Center Operational Services and Lan services matrices attached as
Exhibit E-2 to this Schedule further defines the roles and responsibilities of
the Parties. In the event of a conflict between the terms of the Data Center
Operational Responsibilities Matrix, the Lan services Matrix and the Agreement
and its Schedules, the terms of the Agreement and its Schedules shall govern.
-----------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule E
April 30, 1999
<PAGE> 73
SECTION E-2
SERVICE LEVELS
1.0 INTRODUCTION
This section describes the process for building Service Objectives and Service
Levels by refining OTI's initial service objectives into formal Service
Objectives and Service Levels and service criteria, that will be reflected in
Schedule E. A Service Objective means a service objective established as
described in this Section E-2 which ISM will strive to attain on a monthly
basis. A Service Level means a service level established as described in this
Section E-2, which will result in the awarding of Service Level Credits if not
attained by IBM on a monthly basis.
*
1.1 DETAILED ITERATIVE PROCESS DESCRIPTION
*
1.2 IMPLEMENTATION OF SERVICE OBJECTIVES AND SERVICE LEVEL AGREEMENTS
*
1.3 SERVICE LEVEL CREDITS
*
1.4 MATERIAL BREACH DUE TO SERVICE LEVELS
*
1.0 DEFINITIONS
For purposes of this Schedule, the following terms shall have the following
meanings:
*
2.0 SERVICE LEVEL CRITERIA
*
-----------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule E
April 30, 1999
<PAGE> 74
SCHEDULE E
SERVICE LEVELS
EXHIBIT E-1
SERVICE LEVEL AGREEMENTS
NOTE: OTI is currently working on building a 24 hour chart that will illustrate
a typical business day. Critical milestone events highlighting Applications
Software startup/shutdown and availability windows will be identified. Pending
the completion of this chart, the draft service level objectives for Hardware
and System Software and Applications Software Availability cannot be calculated
During the Measurement Period described in Section E-2, IBM will use all
commercially reasonable efforts to provide the Services in accordance with OTI's
initial service level objectives as set out in Exhibit E-1.
SCHEDULE E
April 30, 1999
<PAGE> 75
OPTIMARK SERVICE LEVEL OBJECTIVES:
*
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 76
CHART E-1A
SYSTEM AVAILABILITY (INITIAL SERVICE OBJECTIVE)
*
CHART E-1B
DATA CENTER RELIABILITY
*
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 77
CHART E-2A
APPLICATIONS SOFTWARE AVAILABILITY
*
CHART E-2B
NEW APPLICATIONS SOFTWARE/SOFTWARE AVAILABILITY
*
CHART E-3
RESERVED
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 78
CHART E-4
SCHEDULED BATCH SERVICES
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 79
CHART E-5
LAN AVAILABILITY
*
CHART E-6
HELP DESK
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 80
CHART E-7
PROBLEM MANAGEMENT
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 81
EXHIBIT E-2
Operational Responsibilities Matrix
Data Center Operational/ Lan services Responsibilities Matrix
DATA CENTER OPERATIONAL SERVICES MATRIX
* [12 page description]
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
SCHEDULE E
April 30, 1999
<PAGE> 82
SCHEDULE F
CONTRACTS
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------------
CONTRACTS
--------------------------------------------------------------------------------------------------------------------------------
ITEM VENDOR NAME DESCRIPTION CONTRACT
NUMBER NUMBER
--------------- --------------------------------------- ---------------------------------------------- ------------------------
<S> <C> <C> <C>
1 Cisco Systems Inc. Maintenance for Cisco equipment located at 1056629
the IBM Data Center as identified in
Schedule I, sections (a), (b) and (f).
--------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Schedule F
April 30, 1999
<PAGE> 83
SCHEDULE I
LAN
This Schedule is a description of the Lan located at the Data Center as of the
Commencement Date. This will be used for determining growth in the Lan.
Lan components
a. 2 x Cisco Local Directors
b. 2 x Cisco 5513 Catalyst Switch, each contains the following cards:
1. Supervisor engine II
2. 10/100 fast ethernet switching module (WS-X5213A) x 5
3. Route Switch Module (RSM)
c. 2 x Cisco 2514 routers (IBM firewall)
d. 2 x True Time network servers
1. 1 x model 600-301-NTS Network Time Server
2. 1 x model 600-401 Network Time Server
e. 1 x GPS dish (antenna)
f. 1 x Cisco 2511 terminal server
OTI lan topology diagram
*
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
Schedule I
April 30, 1999
<PAGE> 84
SCHEDULE J
IBM CHARGES, MEASURES OF UTILIZATION, AND
FINANCIAL RESPONSIBILITIES
1.0 INTRODUCTION
This Schedule J describes the methodology for calculating the charges with
respect to the Services being provided to OTI pursuant to this Agreement unless
expressly provided otherwise in this Agreement. The Monthly Services Charge
("MSC") and any other charge provisions of this Agreement are intended, in the
aggregate, to compensate IBM for all of the resources used in providing the
Services. In addition, this Schedule J describes the measures of certain
resource utilization and the tracking thereof.
Attached to this Schedule are the following:
a. Exhibit J-1 which sets forth the Monthly Services Charge,
Baselines, Termination Charges and other applicable rates
(the "Supplement"); and
b. Exhibit J-2 which summarizes the financial responsibilities of the
Parties under this Agreement (the "Financial
Responsibilities Matrix").
All capitalized terms used and not defined in this Schedule J shall have the
same meanings given them in the Agreement and its Schedules.
2.0 MONTHLY SERVICES
CHARGE The Monthly Services Charge is the charge to OTI for IBM's provision of
the Services. For certain services, a baseline quantity is specified and a
charging methodology for excess quantities is stated in the Supplement. For all
other Services, Article 6.3 of the Agreement will determine the additional
charges if any, for new or additional Services. Beginning on the Commencement
Date and monthly thereafter, IBM will invoice OTI in advance for the Monthly
Services Charge due IBM for that month. The Monthly Service Charge amount will
be calculated by dividing the Annual Services Charge specified in the Supplement
for that period by the number of months or portion thereof in that period.
3.0 COST OF LIVING ADJUSTMENT
*
4.0 RESOURCE CATEGORIES AND MEASUREMENT METHODOLOGY
*
5.0 ADDITIONAL RESOURCE CHARGES (ARCS)
*
6.0 BASELINE ADJUSTMENTS
*
7.0 FINANCIAL RESPONSIBILITIES MATRIX
The Financial Responsibilities Matrix attached as Exhibit J-2 further defines
the financial responsibilities of the Parties. In the event of a conflict
between the terms of the Financial Responsibilities Matrix and this Agreement
and its Schedules, the terms of the Agreement and its Schedules shall govern.
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
Schedule J 1
May 3, 1999
<PAGE> 85
EXHIBIT J-1
SUPPLEMENT
NAME AND ADDRESS OF CUSTOMER: CUSTOMER NO.:
OptiMark Technologies Inc.
10 Exchange Place, 12th flr.
Jersey City, N.J. 07302
Commencement Date: December 1, 1997.
End Date: March 31, 2003.
TABLE 1 MONTHLY/ANNUAL SERVICES CHARGES
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------
CONTRACT YEAR
------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002 2003 TOTAL
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
ANNUAL * * * * * * * *
SERVICE
CHARGE
------------------------------------------------------------------------------------------------------
*
------------------------------------------------------------------------------------------------------
</TABLE>
*
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
Schedule 2
May 3, 1999
<PAGE> 86
TABLE 2: RESOURCE UNIT BASELINES
*
TABLE 3: ADDITIONAL RESOURCE CHARGES
TABLE 4: TERMINATION FOR CONVENIENCE
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
CONTRACT YEAR
---------------------------------------------------------------------------------------------------------------
BASE 1997 1998 1999 2000 2001 2002 2003
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
TERMINATION CHARGE * * * * * * *
---------------------------------------------------------------------------------------------------------------
</TABLE>
*
------------------------
* This confidential portion has been ommitted and filed separately with the
Commission.
Schedule J 3
May 3, 1999
<PAGE> 87
EXHIBIT J-2
FINANCIAL RESPONSIBILITIES MATRIX
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule J 4
May 3, 1999
<PAGE> 88
SCHEDULE K
OPERATING ENVIRONMENT STANDARDS
1.0 INTRODUCTION
This Schedule K defines the mutually agreed to operating environment standards
(Hardware and Software) which IBM will support during the Term. OTI retains
financial responsibility to ensure all Software is deemed current in accordance
with Section 3.6 of the Agreement as of the Commencement Date.
2.0 APPLICATIONS SOFTWARE INSTALLATION STANDARDS
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule K 1
May 3, 1999
<PAGE> 89
Operating Environment
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule J 2
May 3, 1999
<PAGE> 90
SCHEDULE L
SECURITY
1.0 INTRODUCTION
IBM will provide a "Security Management Guidelines for Commercial Environments"
document to OTI as a starting point for building OTI's security guidelines that
are to be in place for OTI as of the Commencement Date. During the Transition
Period, IBM will work with OTI to refine this document and create the
appropriate section of the Procedures Manual which will define the mutually
agreeable security controls which will be implemented at/for OTI. SECURITY
MANAGEMENT
a. IBM will:
1. provide OTI with a customized version of "IBM
Information Security Management Guidelines for
Commercial Environments" (drafts dated Feb. 27 and
April 27, 1998); and
2. in conjunction with OTI, review the "Security Management
Guidelines for Commercial Environments" document and
create the mutually agreed upon OTI security policies
and procedures; and
3. in conjunction with OTI, on an ongoing basis review the
security policy and procedures for effectiveness and
recommend improvements; and
4. maintain and update the security section of the
Procedures Manual when necessary.
b. OTI will:
1. provide IBM with OTI's most recent security standards
and practices, including updates as they occur; and
2. in conjunction with IBM review the security policies and
procedures for effectiveness and recommend improvements.
2.0 PHYSICAL SECURITY
*
3.0 LOGICAL ACCESS CONTROL
*
4.0 LAN SECURITY
*
5.0 DATA NETWORK
*
------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
Schedule L 1
April 30, 1999
<PAGE> 91
SCHEDULE M
HELP DESK
1.0 INTRODUCTION
IBM will staff a Help Desk to act as the initial single-point-of-contact
("SPOC") to support the Data Center, including the Machines including the Lan
and System Software. IBM Help Desk will receive calls from OTI's End Users, who
require assistance in the resolution of problems, concerns and to request
Services.
2.0 HOURS OF COVERAGE
The Help Desk hours of coverage will be 24 hours a day, 7 days a week.
3.0 HELP DESK SERVICES
*
4.0 ATTACHMENT
*
---------------
* This confidential portion has been ommitted and filed separately with the
Commission.
Schedule M 1
April 30, 1999
<PAGE> 92
SCHEDULE N
CHANGE ORDER PROCESS
1.0 INTRODUCTION
1.1 All capitalized terms used in this Schedule and not otherwise
defined herein will have the meanings ascribed to them in the Agreement. For the
purposes of this schedule, "Change" shall mean any change to the Services which
requires IBM to perform functions different from and in addition to those
currently provided by IBM in delivering the Services.
1.2 The purpose of the change order process described in this Schedule
"N" is to establish a procedure for requesting Changes to the scope of Services.
1.3 OTI and IBM agree that during a 60 day interim period following the
date of execution of the Agreement, they will work together in good faith to
develop a revised version of this Schedule "N". The agreed purpose of the
revised process is to implement a Change Order process which will be highly
flexible, in order to meet OTI's constantly evolving operating requirements,
while meeting each party's need for contractual certainty. During such interim
period, the full implementation of the process set out in this Schedule "N" will
be deferred and each Change request from OTI will instead be addressed by means
of written authorization from OTI to IBM setting out the requested Change and
undertaking to pay the IBM charges for the requested Change. All Change requests
so addressed during the interim period will be documented in accordance with the
requirements of Schedule "N" following completion of the interim period. If the
parties are unable to reach agreement on a revised version within such interim
period (or any mutually agreed extension of such period), this Schedule "N"
shall apply.
2.0 OTI INITIATED CHANGE
2.1 OTI may request a Change to the scope of Services, including the
introduction of New Services, at any time and from time to time during the Term
by completing and delivering to IBM a change order request in the form attached
hereto as Exhibit 1 (a "Change Order Request"). Each Change Order Request shall
be signed by the OTI Project Executive (or any other Person designated by the
OTI Project Executive in writing from time to time) and shall contain all
technical and financial information required for IBM to assess the request.
2.2 Unless OTI and IBM otherwise agree, IBM shall respond to a Change
Order Request within 30 days of its receipt thereof (or such longer period as
OTI and IBM may agree) by delivering to OTI a change order proposal in the form
attached hereto as Exhibit 2 (a "Change Order Proposal"). Each Change Order
Proposal shall specifically address the relevant Change Order Request and
identify the scope of the proposed Change, the solution, the implementation
approach, the expected delivery time, the price implications, if any, and any
other change to the Agreement terms as a result of such Change. If IBM
determines that a Change Order Request could be implemented in a more cost
effective manner than that described in the Change Order Request or should, for
any reason, be implemented in a different manner than that described in the
Change Order Request,
Schedule N 1
April 30, 1999
<PAGE> 93
IBM shall advise OTI in writing of its recommendations and shall, if requested
by OTI, prepare a Change Order Proposal which reflects its recommendations.
2.3 Unless OTI and IBM otherwise agree, within 30 days of receiving the
Change Order Proposal from IBM (or such period as OTI and IBM may agree) OTI
shall:
(a) accept the Change order Proposal by signing and returning the
Change Order Proposal to IBM;
(b) propose modifications to any aspect of the Change Order Proposal
that OTI finds unacceptable by so notifying ISM in writing; or
(c) reject the Change Order Proposal by notifying IBM in writing.
If OTI proposes modifications to the Change Order Proposal, IBM
shall submit a revised Change Order Proposal within 30 days of IBM receiving
notice of such proposed modifications (or such other period as OTI and IBM may
agree). OTI reserves the right to accept or reject, in its sole and absolute
discretion, any Change Order Proposal submitted by IBM in response to a Change
Order Request.
3.0 IBM INITIATED CHANGE
3.1 IBM may request a Change to the scope of Services, including the
introduction of New Services, at any time and from time to time during the Term
by completing and delivering to OTI a Change Order Proposal. Each Change Order
Proposal shall be signed by the IBM Project Executive (or any other Person
designated by the IBM Project Executive in writing from time to time) and shall
identify the scope of the proposed Change, the solution, the implementation
approach, the expected delivery time and any proposed adjustment to the Monthly
Services Charges and/or other amounts payable by OTI and any other change to the
Agreement terms as a result of such Change.
3.2 Subject to Section 3.3 below, unless OTI and IBM otherwise agree
within 30 days of receiving a Change Order Proposal from IBM (or
such longer period as OTI and IBM may agree) OTI shall:
(a) accept the Change Order Proposal by signing and returning the
Change Order Proposal to IBM;
(b) propose modifications to any aspect of the Change Order Proposal
that OTI finds unacceptable by so notifying IBM in writing; or
(c) reject the Change order Proposal by notifying IBM in writing.
If OTI proposes modifications to the Change Order Proposal, IBM may submit a
revised Change Order Proposal within 30 days of IBM receiving notice of such
proposed modifications (or such other period as OTI and IBM may agree).
Schedule N 2
April 30, 1999
<PAGE> 94
3.3 OTI shall evaluate each Change Order Proposal to determine the
impact of the proposed Changes contemplated thereby and will accept any
reasonable Change Order Proposal made by IBM; provided, however, that OTI may
reject any Change Order Proposal made by IBM or delay its implementation, if OTI
determines, in its sole and absolute discretion, that the Change contemplated by
the Change Order Proposal will:
(a) increase the Monthly Services Charge and/or any other amounts
payable by OTI to IBM pursuant to the Agreement;
(b) have an adverse impact upon any of the Services provided to, or the
business operations of, OTI; or
(c) require OTI to dedicate additional resources, including personnel,
to accommodate such Changes.
4.0 GENERAL
4.1 OTI and IBM agree that no Change will be implemented pursuant to a
Change Order Proposal until OTI has had a reasonable opportunity to adapt its
operations to accommodate the proposed Change and OTI has so notified IBM.
4.2 If OTI and IBM agree on the terms and conditions of a Change Order
Proposal, then OTI and IBM shall fully co-operate with each other (and any
third-party vendors or suppliers, if any) to implement the proposed Change
agreed to in the Change Order Proposal.
4.3 IBM shall maintain a record of each Change Order Request, Change
Order Proposal and all other documentation relating thereto.
Schedule N 3
April 30, 1999
<PAGE> 95
EXHIBIT 2 TO SCHEDULE "N"
CHANGE ORDER PROPOSAL
TO: OTI TECHNOLOGIES INC. ("OTI")
FROM: IBM CANADA LIMITED ("IBM")
RE: CHANGE ORDER PROCESS UNDER INFORMATION TECHNOLOGY AGREEMENT
DATED --------- BETWEEN OTI AND IBM CANADA LIMITED (THE "AGREEMENT")
CHANGE ORDER PROPOSAL #_______ RESPONSE TO CHANGE ORDER #______
This Change Order Proposal forms part of and is subject to the terms and
conditions of the Agreement and is not binding until both IBM and OTI have
respectively executed and agreed to the Change Order Proposal.
1. CHANGE ORDER REQUEST
1.1 Business Need
1.2 Request Description
1.3 Change Order Requirements
2. PROPOSAL SOLUTION
2.1 Services offered
2.2 Service levels
2.3 Execution plan
2.4 Assumptions
3. FINANCIAL ASPECTS
Insert pricing
3.1 Potential benefits
3.2 Other potential advantages
3.3 Optional services
4. TERMS AND CONDITIONS
4.1 Obligations of IBM
4.2 Obligations of OTI
4.3 Validity period
This offering is valid until:
4.4 Cancellation
In the event that OTI, after accepting the offering, should decide for any
reason whatsoever to terminate it, OTI must pay to IBM a charge equal to the
installation costs incurred by IBM as of the date of cancellation, plus any
charges for which IBM is liable to its suppliers.
4.5 Points requiring follow-up
4.6 Sales taxes
Schedule N 4
April 30, 1999
<PAGE> 96
Costs set out in this offering do not include relevant taxes.
APPENDICES
Agreed to:
IBM CANADA LIMITED
By: ------------------------------
Authorized Signature
------------------------------
Name (Print or Type)
------------------------------
Title
------------------------------
Date
Agreed to:
OTI INC.
By: ------------------------------
Authorized Signature
------------------------------
Name (Print or Type)
------------------------------
Title
------------------------------
Date
Schedule N 5
April 30, 1999
<PAGE> 97
EXHIBIT 1 TO SCHEDULE "N"
CHANGE ORDER REQUEST Change Order Request number _____
TO: IBM CANADA LIMITED ("IBM")
FROM: OTI TECHNOLOGIES INC. ("OTI")
RE: CHANGE ORDER PROCESS UNDER THE INFORMATION TECHNOLOGY AGREEMENT
DATED ----------- MADE BETWEEN OTI AND IBM CANADA LIMITED. (THE
"AGREEMENT").
This Change Order Request forms part of and is subject to the terms and
conditions of the Agreement and is not binding until both IBM and OTI have
respectively executed and agreed to a Change Order Proposal prepared by IBM.
1. Business Need
2. Request Description
3. Change Order Requirements
4. Delivery Requirements
OTI TECHNOLOGIES INC.
By: ------------------------------
Authorized Signature
------------------------------
Name (Print or Type)
------------------------------
Title
------------------------------
Date
Schedule N 6
April 30, 1999
