Non-exclusive Software License Agreement

Exhibit 10.32


Non-exclusive Software License Agreement


This Non-exclusive Software License Agreement (this "Agreement") is entered into between the following (each a "Party" and collectively the "Parties"):


1. Deutsche Borse Aktiengesellschaft, Neue Borsenstrasse 1, 60487 Frankfurt am
Main, Germany


(hereinafter "DBAG")


2. SWX Swiss Exchange, Selnaustrasse 30, 8021 Zurich, Switzerland


(hereinafter "SWX", and


together with DBAG the "Licensors")


and


1. Ceres Trading Limited Partnership, c/o Electronic Chicago Board of Trade,
Inc., 141 West Jackson Blvd., Suite 600-A, Chicago, Illinois 60604, United
States of America


(hereinafter "Ceres" or "Licensee")


2. Board of Trade of the City of Chicago, Inc., 141 West Jackson Blvd., Suite
600-A, Chicago, Illinois, 60604, United States of America


(hereinafter "CBOT")


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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PREAMBLE


A. Licensors are the exclusive owners of the Eurex Software (as defined
below). CBOT offers certain derivative products for trading on an
electronic market operated on the basis of Release a/c/e 1.0 (as defined
below) of the Eurex Software and known as "a/c/e" (the "CBOT Electronic
Market"). Licensee's right to use Release a/c/e 1.0 was to date subject to
the Software License Agreement among DBAG, SWX, CBOT and Ceres dated
October 1, 1999 (the "Software License Agreement"), the Alliance Agreement
among the Parties and Eurex Deutschland, Eurex Zurich AG, Eurex Frankfurt
AG and Ceres Alliance LLC dated October 1, 1999 (the "Alliance Agreement")
and the Master Software Development Agreement dated July 20, 2000 (the
"Master Software Development Agreement"). The Alliance Agreement and the
Software License Agreement provide for, among other things, Licensee's
right to use release Eurex 2.0 of the Eurex Software, and for the co-
ownership of the Parties with regard to certain modifications to such
release. Deutsche Borse Systems AG ("DBS"), a wholly-owned subsidiary of
DBAG, has so far, under a Systems Operations Agreement dated July 20, 2000
(the "Systems Operations Agreement"), provided the services required by
Licensee and the CBOT for (i) the development and the maintenance of
Release a/c/e 1.0 under the Master Software Development Agreement and (ii)
the implementation, operation and maintenance of the computer and
communication resources required to provide electronic trading services on
the basis of Release a/c/e 1.0.


B. By way of a Reorganization Agreement dated an even date herewith (the
"Reorganization Agreement"), the Parties have decided to terminate the
Alliance Agreement and the Software License Agreement as of the Effective
Date (as defined below) and CBOT and Ceres have, with effect from the
Effective Date, waived and assigned (as more clearly set forth in the
Reorganization Agreement) to Licensors, all right, title and interest, as
existing as of the Effective Date, they acquired with regard to the Eurex
Software under the Software License Agreement, the Alliance Agreement, and
the Master Software Development Agreement. The Reorganization Agreement
also provides for the termination of the Master Software Development
Agreement and the Systems Operations Agreement.


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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C. Licensee and CBOT desire to continue to use Release a/c/e 1.0 after the
termination of the Software License Agreement and the Alliance Agreement,
and to replace Release a/c/e 1.0 with a First Subsequent Release (as
defined below) and eventually further Subsequent Releases (as defined
below). Licensors desire, pursuant to the terms of this Agreement, in a
first step, to grant to Licensee the right to use Release a/c/e 1.0 for the
purposes of the trading of certain CBOT derivative products on the CBOT
Electronic Market, and, in a second step, to grant to Licensee the right to
use Subsequent Releases for the same purpose as and when implemented.


D. This Agreement exclusively governs Licensee's right to use Release a/c/e
1.0 as well as any Subsequent Releases and New Modifications (as defined
below). The services required for the maintenance of Release a/c/e 1.0 and
of any Subsequent Release shall be provided by DBAG subject to the terms of
the Software Maintenance Agreement (the "Software Maintenance Agreement")
dated an even date herewith between the Parties, Eurex Zurich AG and Eurex
Frankfurt AG, and the services required for the testing, installation and
deployment of any Subsequent Release shall be provided by DBS subject to
the New Systems Operations Agreement (the "New Systems Operations
Agreement") dated an even date herewith between CBOT, Ceres, DBS, Eurex
Frankfurt AG and Eurex Zurich AG.


In consideration of the foregoing premises and the mutual covenants herein set forth, the parties agree as follows:


1. Definitions


Unless otherwise specified in the body of this Agreement, each term set forth below when used anywhere in this Agreement or its Exhibits shall have the respective meaning ascribed to it below:


1.1 "Additional Eligible Derivatives" shall mean the CBOT derivatives products
identified in Exhibit A, section B, as may be amended in writing from time
to time, other than an Initial Eligible Derivative.


1.2 "Affiliate" shall have the meaning set forth in the Reorganization
Agreement.


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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1.3 "CBOT Group" shall have the meaning set forth in the Reorganization
Agreement.


1.4 "Change of Control" shall have the meaning set forth in the Reorganization
Agreement.


1.5 "Documentation" shall mean all user documentation in both human readable
and machine readable form, flow charts and narratives, as well as other
materials used in providing and supporting electronic trading facilities
and services and all other tangible materials which represent, describe or
specify the Licensed Programs and/or the New Modifications or their use,
operations or applications. For the avoidance of doubt, the term
"Documentation" shall include the Program Documentation (as defined in
Section 1.13 of the SLA).


1.6 "Effective Date" shall have the meaning set forth in the Reorganization
Agreement.


1.7 "Eligible Derivatives" shall mean the Initial Eligible Derivatives and the
Additional Eligible Derivatives.


1.8 "Eurex Group" shall have the meaning set forth in the Reorganization
Agreement.


1.9 "Eurex Exchanges" means Eurex Deutschland and Eurex Zurich.


1.10 "Eurex Software" shall have the meaning set forth in the Reorganization
Agreement, and shall, for the avoidance of doubt, include the Licensed
Programs (excluding the Tools) and the New Modifications.


1.11 "First Subsequent Release" shall mean the release of the Eurex Software
described in Exhibit C.


1.12 "First Subsequent Release Date" shall mean the Subsequent Release Date of
the First Subsequent Release.


1.13 "Initial Eligible Derivatives" shall mean the derivative products set
forth in Exhibit A, section A.


1.14 "Licensed Programs" shall mean


(a) until the First Subsequent Release Date the Tools and all those parts
of the Eurex Software, in an object code or other executable format,
but in any


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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event excluding the source code, (i) which were actually used as of
the Effective Date by the Licensee for the electronic trading of
Eligible Derivatives on the CBOT Electronic Market and for providing
and supporting the facilities and services required by CBOT users for
such trading, and/or (ii) which were the subject-matter of any New
Modifications agreed to after the Effective Date and are actually used
for the electronic trading of Eligible Derivatives on the CBOT
Electronic Market and for providing and supporting the facilities and
services required by CBOT users for such trading before the First
Subsequent Release Date; and


(b) from any Subsequent Release Date to the following Subsequent Release
Date the Tools and all those parts of the Eurex Software in an object
code or other executable format, but in any event excluding the source
code, (i) which are actually used as of such Subsequent Release Date
by the Licensee for the electronic trading of Eligible Derivatives on
the CBOT Electronic Market and for providing and supporting the
facilities and services required by CBOT users for such trading,
and/or (ii) which are the subject-matter of any New Modifications
agreed to after this Subsequent Release Date and actually used by
Licensee for the electronic trading of Eligible Derivatives on the
CBOT Electronic Market and for providing and supporting the facilities
and services required by CBOT users for such trading before the
following Subsequent Release Date.


The term "Licensed Programs" shall not include any clearing
functionalities, but shall include the "distributed matching algorithm",
provided that (i) the "distributed matching algorithm" is thoroughly
tested, at Licensee's cost and expense, (ii) all actions and cost necessary
for taking the distributed matching algorithm into production shall be
subject to a change request under the New Systems Operations Agreement, and
(iii) no service levels agreed to under the New Systems Operations
Agreement shall apply with regard to services involving the "distributed
matching algorithm".


1.15 "Licensors Confidential Information" shall have the meaning as defined in
Section 7.2 below.


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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1.16 "New Modifications" shall mean all of the alterations, adaptions,
amendments, modifications, enhancements, extensions, developments and
improvements, or other work results related, to the Licensed Programs made
under the Master Software Development Agreement (to the extent not already
included in the Licensed Programs) or, subsequently, the Software
Maintenance Agreement.


1.17 "Proprietary Rights" means, with respect to any item, all trade secret,
copyright, patent, trademark, service mark, certification mark, trade dress
or other intellectual property or proprietary rights in all countries
related to such item or any part thereof, any extensions and renewals of
the foregoing, and any registrations, patents or applications with respect
to the foregoing, including any Licensors Confidential Information included
therein or related thereto.


1.18 "Release a/c/e 1.0" shall mean those parts of the Eurex Software that have
been put into production for purposes of the CBOT Electronic Market on or
before the Effective Date.


1.19 "Subsequent Release" shall mean the First Subsequent Release and any
further release intended for the operation of the CBOT Electronic Market.


1.20 "Subsequent Release Date" shall mean the date on which a Subsequent Release
has been put into production for the electronic trading of Eligible
Derivatives on the CBOT Electronic Market and for providing and supporting
the facilities and services required by CBOT users for such trading before
the following Subsequent Release Date.


1.21 "System" shall have the meaning set forth in the Reorganization Agreement.


1.22 "Termination Date" shall have the meaning as defined in Section 3.


1.23 "Tools" shall mean various tools and methodology created by DBS (as
presently used, subsequently modified or newly created by DBS) as are
necessary for Licensee and CBOT to receive the services provided under the
New Systems Operations Agreement.


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Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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2. Grant of License


2.1 Subject to the terms and conditions of this Agreement, Licensors hereby
grant to Licensee throughout the period from the Effective Date to the
Termination Date a non-exclusive, non-transferable license, sublicensable
only as provided in this Section 2 and royalty-bearing as provided in
Section 6, to use the Licensed Programs in object code form only to provide
and support electronic trading facilities and services for the trading of
Eligible Derivatives on the CBOT Electronic Market. Licensee may use the
Licensed Programs for such purposes only on the equipment and
infrastructure made available to it by DBS under the New Systems Operations
Agreement. Licensee may provide to CBOT users those components of the
Licensed Programs as are necessary for such users to participate in the
electronic trading of Eligible Derivatives on the CBOT Electronic Market.
Licensee shall have no right to decompile, reverse engineer, disassemble,
rent, lease, distribute or modify the Licensed Programs and make derivative
works thereof and/or to merge the same into other programs and materials.
Licensee shall have no other rights with respect to the Licensed Programs
other than as provided in this Agreement.


2.2 Licensee may sublicense the Licensed Programs subject to Licensors' prior
written consent. No such consent shall be required for any sublicense
granted to CBOT to provide and support electronic trading facilities and
services for CBOT users for the trading of Eligible Derivatives on the CBOT
Electronic Market if and to the extent that any such sublicense contains
terms for the benefit of the Licensors which are comparable to the
restrictions contained herein with respect to (i) protecting the
confidentiality and proprietary nature of the Licensed Programs, the
Licensors' Confidential Information and Licensors' Proprietary Rights with
respect thereto, (ii) limitations on use, (iii) disclaimers of warranties,
(iv) limitations on liability and (v) limitations on transfer, assignment
and sublicensing.


3. Term of License


This Agreement shall be effective as of the Effective Date and shall
continue through December 31, 2003 or any earlier date in the event this
Agreement is terminated as of such earlier date pursuant to Section 8.1 or
8.2 (the "Termination Date").


Non-exclusive Software License Agreement - Final


Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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4. Delivery


4.1 Licensee and CBOT acknowledge (i) that the Licensed Programs referred to in
Section 1.13 (a) have been delivered to them and accepted under the Master
Software Development Agreement, and (ii) that the Documentation relating to
such Licensed Programs referred to in Section 1.13(a) has been delivered to
them.


4.2 The First Subsequent Release shall be delivered to Ceres for acceptance on
or before December 31, 2002. With regard to the acceptance of the First
Subsequent Release, the provisions of Section 9.4 of the Software
Maintenance Agreement shall apply accordingly. The steps necessary to take
the First Subsequent Release into production, and the cost thereof, shall
be subject to a Change Request (as defined in the New Systems Operations
Agreement) under the New Systems Operations Agreement.


4.3 The delivery of any Subsequent Release other than the First Subsequent
Release shall take place on the date and with specifications to be mutually
agreed by the Parties. Licensee shall be responsible for the installation
of any Subsequent Release and shall in this context use the services
offered by DBS under the New Systems Operations Agreement. The delivery and
installation of any New Modifications after the Effective Date shall be
agreed under the Software Maintenance Agreement.


5. Warranties, Disclaimer of Warranties


5.1 Licensors warrant that:


5.1.1 Except for the third party software identified in Exhibit B hereto
which Licensors warrant is available from third party vendors, the
Licensed Programs include all of the software used on the Effective
Date by CBOT and Ceres in providing and supporting the CBOT
Electronic Market electronic trading facilities and services for the
users of CBOT.


5.1.2 To Licensors' knowledge as of the date hereof, (i) Licensors, taken
together, and their respective licensors are the lawful owners of
all intellectual property rights in the Licensed Programs with full
rights to grant the license granted herein, and (ii) as delivered to
Licensee, the Licensed Programs do not infringe the intellectual
property rights of any third party and are not subject to


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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any claim of infringement by any third party, provided that
Licensors are aware of the claims under U.S. Patent No. 4,903,201
(the "Patent") asserted in the case captioned eSpeed, Inc. and
Electronic Trading Systems Corporation v. Board of Trade, et al.,
Civil Action No. 3-99CV1016-M, pending in the United Stated District
Court for the Northern District of Texas (the "Texas Case"). None of
the parties to this Agreement have any reason to believe that, when
used in the manner contemplated in this Agreement, the System does
or will infringe any valid patent rights of the plaintiff in the
Texas Case. Notwithstanding any other provisions of this Agreement,
no Party shall have any liability (including, without limitation,
under Section 5.2) to another Party under this Agreement arising out
of or in connection with the Patent or any claims asserted with
respect thereto, in the Texas Case or otherwise, based upon the
Patent.


5.1.3 To Licensors' knowledge as of the date hereof, the Licensed Programs
do not contain any timer, clock, counter or other limiting design or
routine which causes the Licensed Programs to become erased,
inoperable or otherwise incapable of being used in the full manner
for which they are designed and licensed pursuant to this Agreement
after being used or copied a certain number of times, or after the
lapse of a certain period of time, after the occurrence or lapse of
any similar triggering factor or event, or because they have been
installed on or moved to a central processing unit or system which
has a different serial number, model number or other identification
different from the system on which they were originally installed.


5.1.4 Neither of Licensors is a party to any agreement that impairs its
rights to grant the license herein or perform its obligations
hereunder.


5.2 Licensee's sole remedies with respect to breaches by Licensors of their
warranties under Section 5.1 shall be the commercially reasonable efforts
of the Licensors to correct such breaches or cause such breaches to be
corrected.


5.3 Licensee recognizes that, in licensing the Licensed Programs from
Licensors, it is relying upon its own investigation of the Licensed
Programs and its judgments on the suitability of the Licensed Programs for
its purposes and acknowledges that Licensors


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pursuant to a request for confidential treatment.
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can and do not make any representation or warranties that the Licensed
Programs do or will (i) meet the requirements of Licensee or operate in
configurations selected by Licensee, (ii) operate in the environment of
Licensee in an uninterrupted or error-free manner, or (iii) conform to any
performance specifications.


5.4 With regard to the First Subsequent Release, the provisions set forth in
Sections 11.2, 12.3 and 14.1 of the Software Maintenance Agreement shall
apply instead of Sections 5.2, 5.3 and 5.7 of this Agreement. For the
avoidance of doubt, the preceding sentence does not apply with regard to
the "distributed matching algorithm" which is not part of the First
Subsequent Release.


5.5 Except as set forth in Section 5.1, the Licensed Programs are being
provided to Licensee as is, and Licensors do not make, and hereby disclaim,
any and all other warranties, express, implied, statutory or otherwise,
including, but not limited to, implied warranties of title, non-
infringement, merchantability and fitness for a particular purpose, and
shall have no liability in connection with or arising out of any failure of
the Licensed Programs (i) to meet Licensee's requirements or operate in
configurations selected by Licensee, (ii) to operate in Licensee's
environment in an uninterrupted or error-free manner or (iii) to conform to
any performance specifications, or in connection with or arising out of any
ability or inability to use the Licensed Programs in connection with any of
the financial products or contracts traded (or failed to be traded) on any
exchange or by any members thereof. Notwithstanding the fact that Licensee
is not entitled to make any modifications to the Licensed Programs,
Licensors shall have no liability of any kind under this Agreement for any
modifications made to the Licensed Programs by Licensee or any permitted
sublicensee of any party acting on behalf of any of them.


5.6 Each of the Parties hereby represents and warrants to the others as
follows:


5.6.1 It has all requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated
hereby.


5.6.2 The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on its part.


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separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.


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5.6.3 This Agreement is a legal, valid and binding obligation of it, and
enforceable against it in accordance with the terms hereof.


5.7 In no event shall Licensors be liable for, and Licensee hereby waives and
releases any claims it might otherwise have to be compensated by Licensors
in connection with this Agreement for, any special, indirect, consequential
or collateral damages (such as, without limitation, loss of revenue, loss
of profits, loss of data, loss of use, interruption of business or loss of
goodwill), or any damages other than direct damages, without regard to the
circumstances giving rise to any purported claim and regardless of the
legal or equitable grounds on which any purported claim is based, arising
from the granting of the license granted herein or the dependence upon or
use of the Licensed Program by Licensee or any third party.


5.8 Licensee agrees to indemnify, defend and hold Licensors harmless against
any and all damages, costs or expenses (including reasonable attorney's
fees) relating to ...