Exhibit
10.6


 




 





 


Master
Services Agreement


 


by and
between


 


SG Cowen
& Co., LLC


 


and


 


SAVVIS
Communications Corporation


 


 


Dated as
of January 21, 2005


 




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
  [INTENTIONALLY LEFT
  BLANK]

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
  TERM AND COMMITMENT

  	
  6

  
	
   3.1.

  	
  Initial Term

  	
  6

  
	
   3.2.

  	
  Expiration and Renewal

  	
  6

  
	
   3.3.

  	
  Cowen Commitment

  	
  7

  
	
   3.4.

  	
  Reduction of Minimum Monthly Commitment

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.

  	
  SERVICES

  	
  7

  
	
   4.1.

  	
  Scope of Services

  	
  7

  
	
   4.2.

  	
  Continuous Improvement and Best Practices

  	
  8

  
	
   4.3.

  	
  IT Infrastructure

  	
  8

  
	
   4.4.

  	
  Knowledge Sharing

  	
  9

  
	
   4.5.

  	
  Dedicated Service Locations; Dedicated Environments

  	
  9

  
	
   4.6.

  	
  Cooperation

  	
  9

  
	
   4.7.

  	
  Office Space

  	
  10

  
	
   4.8.

  	
  Policy and Procedures Manual

  	
  10

  
	
   4.9.

  	
  Quality Assurance

  	
  10

  
	
   4.10.

  	
  [INTENTIONALLY LEFT BLANK]

  	
  10

  
	
   4.11.

  	
  Acceptable Use

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.

  	
  EQUIPMENT 

  	
  12

  
	
   5.1.

  	
  Generally

  	
  12

  
	
   5.2.

  	
  Systems Maintenance

  	
  12

  
	
   5.3.

  	
  Telecommunications/Connectivity

  	
  12

  
	
   5.4.

  	
  [INTENTIONALLY LEFT BLANK]

  	
  13

  
	
   5.5.

  	
  SAVVIS Equipment at Cowen Service Locations

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.

  	
  NEW SERVICES 

  	
  13

  
	
   6.1.

  	
  New Services

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.

  	
  CHANGES IN
  CIRCUMSTANCES 

  	
  13

  
	
   7.1.

  	
  Business Downturn

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.

  	
  TRANSITION 

  	
  14

  
	
   8.1.

  	
  Transition Services

  	
  14

  
	
   8.2.

  	
  Transition Acceptance Tests

  	
  14

  
	
   8.3.

  	
  Transition Completion

  	
  14

  



 

















 


	
  Section 9.

  	
  LICENSES AND PERMITS 

  	
  14

  
	
   9.1.

  	
  SAVVIS Responsibility

  	
  14

  
	
   9.2.

  	
  Cowen Responsibility

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.

  	
  COMPLIANCE WITH LAW;
  CHANGES IN LAW 15

  	
   

  
	
   10.1.

  	
  Responsibilities

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.

  	
  COWEN SERVICE LOCATIONS
  

  	
  15

  
	
   11.1.

  	
  Use of Cowen Service Locations

  	
  15

  
	
   11.2.

  	
  Procedures

  	
  15

  
	
   11.3.

  	
  Structure

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.

  	
  SAVVIS FINANCIAL
  REPORTING 

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.

  	
  SERVICE LEVELS 

  	
  16

  
	
   13.1.

  	
  Service Levels

  	
  16

  
	
   13.2.

  	
  Measurement and Monitoring Tools

  	
  16

  
	
   13.3.

  	
  Reports

  	
  17

  
	
   13.4.

  	
  Cowen Satisfaction Surveys

  	
  17

  
	
   13.5.

  	
  Benchmarking

  	
  17

  
	
   13.6.

  	
  Failure to Perform

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 14.

  	
  SERVICE LOCATIONS 

  	
  19

  
	
   14.1.

  	
  Service Locations

  	
  19

  
	
   14.2.

  	
  Safety and Security Procedures

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 15.

  	
  SOLICITATION 

  	
  19

  
	
   15.1.

  	
  Prohibited Solicitation

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 16.

  	
  MANAGEMENT AND CONTROL 

  	
  20

  
	
   16.1.

  	
  Project Manager

  	
  20

  
	
   16.2.

  	
  Project Manager Meetings

  	
  20

  
	
   16.3.

  	
  Other Meetings

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 17.

  	
  SUBCONTRACTORS 

  	
  21

  
	
   17.1.

  	
  Subcontractors

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 18.

  	
  SAVVIS STAFF 

  	
  21

  
	
   18.1.

  	
  SAVVIS Staff

  	
  21

  
	
   18.2.

  	
  Conduct of Staff

  	
  22

  
	
   18.3.

  	
  Turnover

  	
  22

  



 


iii

















 


	
  Section 19.

  	
  CHANGE CONTROL
  PROCEDURES AND CHANGES TO THE SERVICES

  	
  23

  
	
   19.1.

  	
  Change Control

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 20.

  	
  SOFTWARE AND PROPRIETARY
  RIGHTS 

  	
  23

  
	
   20.1.

  	
  Cowen Software

  	
  23

  
	
   20.2.

  	
  SAVVIS Materials

  	
  23

  
	
   20.3.

  	
  Ownership of Deliverables

  	
  24

  
	
   20.4.

  	
  Residuals

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 21.

  	
  DATA AND RETURN OF DATA
  

  	
  25

  
	
   21.1.

  	
  Ownership of Cowen Data

  	
  25

  
	
   21.2.

  	
  Copies of Data

  	
  25

  
	
   21.3.

  	
  Return of Data

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 22.

  	
  CONSENTS

  	
  26

  
	
   22.1.

  	
  Cowen Consents

  	
  26

  
	
   22.2.

  	
  SAVVIS Consents

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 23.

  	
  DISASTER RECOVERY AND
  BUSINESS CONTINUITY 

  	
  26

  
	
   23.1.

  	
  Disaster Recovery and Business Continuity Plans

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 24.

  	
  ALLOCATION OF RESOURCES
  

  	
  26

  
	
   24.1.

  	
  Priority

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 25.

  	
  FEES, PAYMENT AND
  INVOICES 

  	
  26

  
	
   25.1.

  	
  Fees

  	
  26

  
	
   25.2.

  	
  Refunds and Credits for Non-Provision of Services

  	
  27

  
	
   25.3.

  	
  Costs and Expenses

  	
  27

  
	
   25.4.

  	
  Rights of Set Off

  	
  27

  
	
   25.5.

  	
  Reimbursable Items

  	
  27

  
	
   25.6.

  	
  Unused Credits

  	
  27

  
	
   25.7.

  	
  Proration

  	
  27

  
	
   25.8.

  	
  Time of Payment

  	
  27

  
	
   25.9.

  	
  Disputed Payment

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 26.

  	
  TAXES 

  	
  28

  
	
   26.1.

  	
  Taxes

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 27.

  	
  AUDITS

  	
  29

  
	
   27.1.

  	
  Services Audit

  	
  29

  
	
   27.2.

  	
  Fee Audit

  	
  29

  



 


iv

















 


	
   27.3.

  	
  Record Retention

  	
  30

  
	
   27.4.

  	
  Facilities

  	
  30

  
	
   27.5.

  	
  SAS Audit

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 28.

  	
  CONFIDENTIALITY 

  	
  30

  
	
   28.1.

  	
  Confidential Information.

  	
  30

  
	
   28.2.

  	
  Obligations

  	
  31

  
	
   28.3.

  	
  Exclusions

  	
  32

  
	
   28.4.

  	
  Loss of Confidential Information

  	
  33

  
	
   28.5.

  	
  Injunctive Relief

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 29.

  	
  COVENANTS 

  	
  33

  
	
   29.1.

  	
  By SAVVIS.

  	
  33

  
	
   29.2.

  	
  Mutual Representations and Warranties.

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 30.

  	
  DISPUTE RESOLUTION

  	
  35

  
	
   30.1.

  	
  Dispute Resolution Procedure

  	
  35

  
	
   30.2.

  	
  Escalation of Dispute.

  	
  35

  
	
   30.3.

  	
  Injunctive Relief

  	
  35

  
	
   30.4.

  	
  Continuity of Base Services

  	
  35

  
	
   30.5.

  	
  Additional Dispute Resolution Terms.

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 31.

  	
  TERMINATION by Cowen 

  	
   

  
	
   31.1.

  	
  Termination for Cause.

  	
  35

  
	
   31.2.

  	
  Termination for Convenience

  	
  36

  
	
   31.3.

  	
  Termination for Change in Control of SAVVIS

  	
  36

  
	
   31.4.

  	
  Termination for Violation of Laws

  	
  36

  
	
   31.5.

  	
  Termination for Material Adverse Change

  	
  36

  
	
   31.6.

  	
  Termination for Bankruptcy

  	
  37

  
	
   31.7.

  	
  Termination for Force Majeure

  	
  37

  
	
   31.8.

  	
  Termination for SLA Failures

  	
  37

  
	
   31.9.

  	
  Remedies

  	
  37

  
	
   31.10.

  	
  Adjustment

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 32.

  	
  TERMINATION BY SAVVIS 

  	
  37

  
	
   32.1.

  	
  Termination for Failure to Pay

  	
  37

  
	
   32.2.

  	
  No Other Grounds for Termination

  	
  38

  
	
   32.3.

  	
  Termination for Bankruptcy

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 33.

  	
  TERMINATION/EXPIRATION
  ASSISTANCE

  	
  38

  
	
   33.1.

  	
  Termination/Expiration Assistance

  	
  38

  



 


v

















 


	
  Section 34.

  	
  LIMITATION OF LIABILITY
  

  	
  40

  
	
   34.1.

  	
  NO CONSEQUENTIAL DAMAGES

  	
  40

  
	
   34.2.

  	
  DIRECT DAMAGES

  	
  40

  
	
   34.3.

  	
  EXCLUSIONS

  	
  40

  
	
   34.4.

  	
  WARRANTY DISCLAIMER

  	
  41

  
	
   34.5.

  	
  Limitation of Liability

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 35.

  	
  INDEMNIFICATION 

  	
  41

  
	
   35.1.

  	
  Indemnity by SAVVIS

  	
  41

  
	
   35.2.

  	
  Infringement by SAVVIS

  	
  42

  
	
   35.3.

  	
  Indemnity by Cowen

  	
  42

  
	
   35.4.

  	
  Infringement by Cowen

  	
  43

  
	
   35.5.

  	
  Indemnification Procedures

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 36.

  	
  INSURANCE 

  	
  44

  
	
   36.1.

  	
  SAVVIS Insurance Coverage

  	
  44

  
	
   36.2.

  	
  Insurance Terms

  	
  44

  
	
   36.3.

  	
  Cowen Insurance Coverage

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 37.

  	
  MISCELLANEOUS
  PROVISIONS 

  	
  46

  
	
   37.1.

  	
  Assignment

  	
  46

  
	
   37.2.

  	
  Notice

  	
  46

  
	
   37.3.

  	
  Counterparts

  	
  47

  
	
   37.4.

  	
  Force Majeure

  	
  47

  
	
   37.5.

  	
  Relationship

  	
  47

  
	
   37.6.

  	
  Severability

  	
  47

  
	
   37.7.

  	
  Waiver Remedies

  	
  47

  
	
   37.8.

  	
  Consents and Approvals

  	
  48

  
	
   37.9.

  	
  No Publicity

  	
  48

  
	
   37.10.

  	
  Entire Agreement

  	
  48

  
	
   37.11.

  	
  Amendments

  	
  48

  
	
   37.12.

  	
  Headings

  	
  48

  
	
   37.13.

  	
  Order of Precedence

  	
  48

  
	
   37.14.

  	
  Survival

  	
  48

  
	
   37.15.

  	
  Covenant of Further Assurances

  	
  48

  
	
   37.16.

  	
  Negotiated Terms

  	
  48

  
	
   37.17.

  	
  Governing Law and Jurisdiction

  	
  49

  
	
   37.18.

  	
  Exports

  	
  49

  
	
   37.19.

  	
  United Nations Declaration

  	
  49

  
	
   37.20.

  	
  Third Party Beneficiaries

  	
  49

  



 


vi

















 


MASTER
SERVICES AGREEMENT


 


This Master Services Agreement (this “Agreement”) is
made as of the 21st day of January, 2005 (the “Effective Date”) by
and between SG Cowen & Co., LLC, a Delaware limited liability company (“Cowen”)
and SAVVIS Communications Corporation, a Missouri corporation (“SAVVIS”).


 


WHEREAS, SAVVIS desires to provide to Cowen, and Cowen
desires to obtain from SAVVIS, the services described in this Agreement in
accordance with the terms and conditions set forth in this Agreement; and


 


WHEREAS, Cowen and SAVVIS have engaged in extensive
negotiations and discussions that have culminated in the formation of the
relationship described herein; and


 


WHEREAS, simultaneously herewith, Cowen is entering
into an agreement with Hewlett-Packard Company (“HP”) for the provision of
services complementary to the services contemplated herein (the “HP Master
Services Agreement”); and


 


WHEREAS, the parties intend that SAVVIS and HP will
work together in an effort to provide a seamless delivery of the HP/SAVVIS
solution and all other services contemplated hereunder to Cowen.


 


NOW, THEREFORE, for and in consideration of the
agreements of the Parties set forth below, Cowen and SAVVIS agree as follows:


 


Section 1.              DEFINITIONS


 


“Affiliates” of a Party, shall mean,
collectively, (i) any entity Controlling, Controlled by or under common Control
with such Party, and, with respect to Cowen, (ii) limited liability
companies, partnerships or an Affiliate of Cowen. At Cowen’s option,
(a) an entity that is a Cowen Affiliate pursuant to (i) above shall be
deemed to remain an Affiliate of Cowen for twenty four (24) months after the
date it ceases to be Controlled by Cowen and (b) the purchaser of all or
substantially all the assets of any line of business of Cowen or its Affiliates
(including the assets of the business in a specific geography or set of
geographies) shall be deemed an Affiliate of Cowen for twenty four (24) months
after the date of purchase, with respect to the business acquired. Each Party
will be fully responsible for all payments and performance due from such Party
or its Affiliate under this Agreement.


 


“Agent” shall mean a
Cowen Agent or a SAVVIS Agent, as the case may be.


 


“Applications Software” means those programs
and other Software (including the supporting documentation, media, on-line help
functions and tutorials) that perform user or business-related information
processing functions and telecommunication tasks, including database management
software, development, measurement, and monitoring tools, and middleware, used
in the provision by SAVVIS of the Services.


 


“Base Case” shall mean the initial
configuration of Services as set forth in Schedule C.


 


“Base Service Levels” shall mean the service
levels and standards for the performance of the Base Services as set forth in
the SOW.


 

















 


“Base Services” shall have the meaning set
forth in Section 4.1.


 


“Benchmarker” shall have the meaning set forth
in Section 13.5.


 


“Business Continuity Plan” shall have the
meaning set forth in Section 23.1.


 


“Change Control Procedures” shall have the
meaning set forth in Section 19.1.


 


“Code” shall mean computer-programming code
including microcode, as applicable.


 


“Confidential Information” shall have the
meaning set forth in Section 28.1(a).


 


“Control” and its derivatives shall mean
possessing, directly or indirectly, the power to direct or cause the direction
of the management, policies and operations of an entity, whether through
ownership of voting securities, by contract or otherwise.


 


“Cowen Agents” shall mean the agents and subcontractors of Cowen.


 


“Cowen Consents” shall mean all consents,
licenses, permits, authorizations or approvals necessary for the Cowen Software
to reside on the Equipment and to allow SAVVIS to use or access Cowen Service
Locations to perform the Services in accordance with this Agreement.


 


“Cowen Data” shall mean (i) all data and
information submitted to SAVVIS by Cowen, its Affiliates or its or their
suppliers (on behalf of Cowen or its Affiliates) residing on the Equipment,
(ii) information and data obtained, developed, created, processed, managed or
produced by SAVVIS or SAVVIS Agents in connection with, or during the
performance of, the Services (other than such information and data which is not
specific to Cowen or its Affiliates and is not specifically produced for Cowen
or its Affiliates); and (iii) information relating to Cowen’s or an Affiliate’s
employees, any Cowen or Affiliate technology, operations, facilities, consumer
markets, products, capacities, systems, procedures, security practices,
research, development, business affairs and finances, ideas, concepts,
innovations, inventions, designs, business methodologies, improvements, trade
secrets, copyrightable subject matter and other proprietary information; and
all information derived from any of the foregoing.


 


“Cowen Service Locations” shall mean any and
all service locations on premises leased or owned by Cowen or its Affiliates (“Cowen
Premises”) where Services are to be provided, including initially, those set
forth in Schedule A, and includes all facilities and services made available to
SAVVIS at all such service locations.


 


“Cowen Software” shall mean all Applications
Software and Systems Software, and any related documentation and other related
materials, owned or in-licensed by Cowen. The Cowen Software includes the
software identified in Schedule P as Cowen Software.


 


“Critical Services” shall mean those Services
that are mission critical or necessary for Cowen or an Affiliate to conduct its
business as specifically listed in Schedule A (Statement of Work (SOW)), and
any additional Services are designated as Critical Services by Cowen in writing
and agreed to by SAVVIS in writing.


 


“Disabling Code” shall have the meaning set
forth in Section 29.1(g).


 


2

















 


“Disaster Recovery Plan” shall have the meaning
set forth in Section 23.1.


 


“Effective Date” shall have the meaning set
forth in the Preamble.


 


“Equipment” shall mean the computing,
telecommunications and network (products and services) and other equipment, and
associated attachments, features, accessories and peripheral devices (including
storage devices and printers), leased or owned by SAVVIS or SAVVIS Agents or
its or their suppliers and used by SAVVIS or SAVVIS Agents to provide the
Services.


 


“Fees” shall have the meaning set forth in
Section 25.1.


 


“Force Majeure Event” shall have the meaning
set forth in Section 37.4.


 


“Governmental Authority” shall mean any
applicable federation, nation, state, sovereign or government, any federal,
supranational, regional, state, local or municipal political subdivision, any
governmental or administrative body, instrumentality, department or agency, or
any court, administrative hearing body, arbitrator, commission or other similar
dispute resolving panel or body, and any other entity exercising executive,
legislative, judicial, regulatory, taxing or administrative functions of a
government with jurisdiction over the applicable matter.


 


“Including” or “e.g.” shall mean “including,
without limitation”.


 


“Initial Term” shall have the meaning set forth
in Section 3.1.


 


“IT Infrastructure” shall have the meaning set
forth in Section 4.3.


 


“Laws” shall mean any laws, statutes,
ordinances, codes, rules, regulations, published standards, permits, judgments,
decrees, writs, injunctions, rulings, orders, binding administrative guidance
and/or other binding requirements of any Governmental Authority. References to
any Law (or any item included in the term “Laws”) shall also mean references to
such Law in changed or supplemented form or to a newly adopted Law replacing
such Law.


 


“Losses” shall mean all losses, liabilities,
damages and claims, and all related costs and expenses (including legal fees
and disbursements and costs and expenses of investigation and litigation, and
costs of settlement, judgment, interest and penalties).


 


“Monthly Performance Report” shall have the
meaning set forth in Section 13.3.


 


“New Service Levels” shall mean the service
levels established by SAVVIS and Cowen in connection with a New Service in
accordance with the terms and conditions of this Agreement.


 


“New Services” shall mean those services
meeting all of the following criteria: 
(a) that are outside the scope of the Base Services; (b) that
are materially different from the Base Services and that are not included in
the Base Case; and (c) for which no charging methodology exists in
Schedule C as of the later of the Effective Date or such time as such New
Service is required or requested by Cowen.


 


“Notice” shall have the meaning set forth in
Section 37.2.


 


3

















 


“Object Code” shall mean Code substantially in
binary form. Object Code is directly executable by a computer after processing,
but without compilation or assembly.


 


“Other Service Location” shall mean any
location, other than a Cowen Service Location or a SAVVIS Service Location,
from which Base Services are provided.


 


“Party” shall mean Cowen or SAVVIS
individually. “Parties” shall mean Cowen and SAVVIS collectively.


 


“Policy and Procedures Manual” shall have the
meaning set forth in Section 4.8.


 


“Project Manager” shall have the meaning set
forth in Section 16.1.


 


“Renewal Term” shall have the meaning set forth
in Section 3.2.


 


“SAVVIS Project Manager” shall have the meaning
set forth in Section 16.1.


 


“SAVVIS Agents” shall mean the agents and
subcontractors of SAVVIS.


 


“SAVVIS Consents” shall mean all consents,
licenses, permits, authorizations or approvals necessary to allow:  (i) SAVVIS and SAVVIS Agents to access or use
any of (1) the Equipment, (2) the SAVVIS Software, including any Third Party
Software which is SAVVIS Software, (3) any assets owned or leased by SAVVIS or
SAVVIS Agents, and/or (4) any third party services retained by SAVVIS to
provide the Services, and (ii) Cowen and its employees, subcontractors and
agents to (1) access or use any of the SAVVIS Materials and (2) access the
SAVVIS Service Locations and Systems.


 


“SAVVIS Materials” shall have the meaning set
forth in Section 20.2.


 


“SAVVIS Regulatory Requirements” shall mean all
Laws to which SAVVIS or SAVVIS Agents are required to adhere or submit or
voluntarily adheres or submits.


 


“SAVVIS Service Location” shall mean any SAVVIS
or SAVVIS Agent service location that is set forth in Schedule A or has
otherwise been pre-approved by Cowen in writing.


 


“SAVVIS Software” shall mean all Applications
Software and Systems Software, and any related documentation and other related
materials, owned or in-licensed by SAVVIS. The SAVVIS Software includes the
software identified in Schedule Q as SAVVIS Software.


 


“SAVVIS Staff” shall mean those employees of
SAVVIS engaged in providing the Services, as described in further detail in
Section 18.1.


 


“SAVVIS Tools” shall mean any software
development tools, know how, methodologies, processes, technologies or
algorithms used by SAVVIS or SAVVIS Agents in providing the Services and based
upon trade secrets or proprietary information of SAVVIS or SAVVIS Agents or
otherwise owned or licensed by SAVVIS or SAVVIS Agents.


 


“Service Commencement Date” shall mean, with
respect to each Service, the date upon which Cowen accepts the Service pursuant
to the acceptance testing procedure applicable thereto.


 


“Service Level Remedies” shall have the meaning
set forth in Section 13.6(a).


 


4

















 


“Service Levels” shall mean the Base Service
Levels and the New Service Levels, collectively.


 


“Service Location” shall mean any Cowen Service
Location, SAVVIS Service Location or Other Service Location.


 


“Services” shall mean the Base Services and the
New Services, collectively.


 


“SLA” shall mean a Service Level Agreement or
SLA as set forth in the SOW.


 


“Software” shall mean the Applications Software
and the Systems Software, collectively.


 


“Source Code” shall mean Code other than Object
Code, and includes Code that may be displayed in a form readable and
understandable by a programmer of ordinary skill, as well as any enhancements,
corrections and documentation related thereto. Source Code includes related
Source Code level system documentation, comments and procedural code, such as
job control language.


 


“Statement of Work” or “SOW” shall mean
the Statement of Work and all appendices thereto, attached to this Agreement as
Schedule A, which describes the Services that are to be provided by SAVVIS and
related obligations of the Parties. The Statement of Work and its appendices
and other documents referenced therein are incorporated into this Agreement by
this reference.


 


“Systems Software” shall mean those programs
and programming (including the supporting documentation, media, on-line help
facilities and tutorials), other than Applications Software, that perform tasks
which are required to operate the Applications Software or otherwise support
the provision of the Services. The Systems Software includes operating systems,
systems utilities, data security software, telecommunications and database
managers.


 


“Systems” shall mean the Software and the
Equipment, collectively.


 


“Term” shall mean the Initial Term and any
Renewal Term as set forth in Sections 3.1 and 3.2.


 


“Termination/Expiration Assistance” shall have
the meaning set forth in Section 33.1.


 


“Termination/Expiration Assistance Period”
shall mean a period of time designated by Cowen, to begin as set forth in
Section 33.1 and not to exceed twelve (12) months after the expiration or termination of this Agreement, during
which Termination/Expiration Assistance Services are to be provided in
accordance with Section 33.


 


“Third Party Services” shall have the meaning
set forth in Section 4.6.


 


“Third Party Software” shall mean the
Applications Software and Systems Software used to provide the Services, which
are provided under license to SAVVIS or Cowen by a third party, and includes
any related software and ongoing services (e.g.,
maintenance and support services, upgrades, subscription services) provided by
third parties.


 


“Transition” shall have the meaning set forth
in Section 8.1(a).


 


5

















 


“Transition Acceptance Testing” shall have the
meaning set forth in Section 8.2.


 


“Transition Services” shall have the meaning
set forth in Section 8.1(b).


 


“Transition Completion Date” shall have the
meaning set forth in Section 8.3.


 


“Transition Plan” shall have the meaning set
forth in Section 8.1(a).


 


“Transition Schedule” shall have the meaning
set forth in Section 8.1(b).


 


“Turnover Plan” shall have the meaning set
forth in Section 33.1(a).


 


“Virus” shall mean: (a) program code,
programming instruction or set of instructions intentionally constructed to threaten,
infect, erase, attack, assault, vandalize, defraud, disrupt, damage, interfere
with or otherwise adversely affect computer programs, data files or operations;
and/or (b) other code typically designated to be a virus, including any Trojan
horse or worm.


 


Section 2.              [INTENTIONALLY LEFT BLANK]


 


Section 3.              TERM AND COMMITMENT


 


3.1.          Initial
Term. The initial term (the “Initial Term”) of this Agreement shall
commence on the Effective Date and shall continue until five (5) years from
June 6, 2005, unless terminated earlier by either Party in accordance with this
Agreement.


 


3.2.          Expiration
and Renewal. Upon expiration of the Initial Term, this Agreement shall
automatically renew for an additional one (1) year period (“Renewal Term”) on
the same terms and conditions hereof, unless either Party elects not to renew
this Agreement as described below. Cowen shall
have the right, in its sole discretion, to notify SAVVIS at least one hundred and eighty (180) days prior to
the expiration of the Initial Term if
Cowen elects not to renew this Agreement. If SAVVIS does not provide
Cowen with notice of the expiration of the Initial Term at least one hundred
and eighty (180) days prior to such expiration, this Agreement shall
automatically renew at the end of the Initial Term; provided, however, that in
such event Cowen shall have the right, in its sole discretion, to terminate the
Renewal Term so automatically renewed, upon providing SAVVIS at least sixty
(60) days prior written notice. The pricing for such Renewal Term shall be
adjusted for the Base Case as set forth in Schedule C. Notwithstanding the
foregoing, if at any time during the Renewal Term, maintenance support for any
of the Equipment and/or Software used by SAVVIS in providing the Services is no
longer available from the original equipment or software manufacturer or
provider or their designee, then SAVVIS shall so notify Cowen. Together with
such notice, SAVVIS shall propose to Cowen a replacement for such Equipment or
Software including pricing for such replacements (which includes pricing for
Equipment, Software and/or maintenance, as applicable) and Cowen shall have the
right, in its sole discretion, to (i) accept SAVVIS’ proposal for such
replacement Equipment or Software, or (ii) terminate this Agreement in
whole or in part by providing SAVVIS at least one hundred and eighty (180) days’
notice of such termination, provided that (a) if Cowen does not exercise its
right to do either of the foregoing within fifteen (15) days after receiving
such proposal, or (b) if Cowen exercises its rights under subsection (ii) of
this sentence, then SAVVIS will be relieved of its obligations to support such
Equipment and/or Software, as applicable.


 


6

















 


3.3.          Cowen
Commitment. In consideration of the rates and terms of Services provided to
it hereunder, Cowen commits to purchase the Services in every month beginning
with the Transition Completion Date throughout the Term of this Agreement at
the total Monthly Recurring Charge for Base Services set forth on Schedule C
(the “Minimum Monthly Commitment”), provided, however, that such Monthly
Recurring Charge may be reduced pursuant to the terms of this Agreement,
including as described below in Section 3.4, or with respect to a Business
Downturn (as described in Section 7.1). Should Cowen purchase Services in any
month in an amount such that the total charges (not including taxes and similar
charges described in Section 26) for such Services are less than the Minimum
Monthly Commitment, Cowen will pay to SAVVIS, in addition to the amount of
charges incurred for Services actually rendered during such month a Shortfall
Charge equal to the difference between the Minimum Monthly Commitment and the
total amount of such charges for such month. Such payment shall be due at the
same time as payment of other charges for such month is due. Cowen acknowledges
that SAVVIS is relying on the commitment set forth in this Section 3.3 in
agreeing to provide Services to Cowen on the rates, terms and conditions set
forth in this Agreement.


 


3.4.          Reduction
of Minimum Monthly Commitment. Notwithstanding anything in this Agreement
to the contrary, Cowen shall have the right, in its sole discretion, to reduce
the Services (with a corresponding reduction to the Minimum Monthly Commitment)
at any time upon at least thirty (30) days notice to SAVVIS by an amount up to,
in the aggregate, twenty-five percent (25%) of the initial Minimum Monthly
Commitment; provided that the Services discontinued pursuant to each reduction
are not replaced with substantially similar services of another provider of
other than IT infrastructure services which Cowen purchases on a bundled basis
from a single provider along with market data services or software services not
offered by SAVVIS, and Cowen shall be required to pay SAVVIS the applicable
CapEx amount in accordance with Schedule C, which payment shall, at Cowen’s
option in its sole discretion, be in consideration of the purchase of the
affected Equipment pursuant to paragraph 33.1(j). Each reduction shall be
effective upon the date designated in Cowen’s notice, which date shall not be
prior to the date which is the last day of the thirty (30) day notice period
referenced above. Other than the reduction of the Minimum Monthly Commitment as
described above, no such reduction shall impose any changes to this Agreement
(e.g., no adjustment to price, term, commitment or a combination thereof).


 


Section 4.              SERVICES


 


4.1.          Scope
of Services. Commencing as of the applicable Service Commencement Date, and
thereafter throughout the Term and any Termination/Expiration Assistance
Period, SAVVIS shall perform each of the Services in accordance with the terms
of this Agreement, including those described in the Statement of Work (the “SOW”)
set forth in Schedule A; provided, however, that, notwithstanding anything to
the contrary in this Agreement, (i) Cowen’s obligations to pay for such
Services shall not commence until the later of the Service Commencement Date or
June 6, 2005, provided Cowen shall in no event have any obligation to pay
SAVVIS for any Services provided prior to June 6, 2005 even if such Services
are used in a production environment to provide Services to Cowen prior to the
Transition Completion Date, and (ii) the Service Levels and Service Level
Credits applying to such Services provided prior to June 6, 2005 shall begin to
accrue upon the Service Commencement Date but such Service Level Credits shall
be credited only to Cowen invoices for Services provided after June 6, 2005.
The scope of the services to be provided by SAVVIS hereunder includes:  (a) the services, processes, functions and
responsibilities described in this Agreement, including the SOW (including, for
avoidance of doubt any services, processes, functions and responsibilities not


 


7

















 


specifically
described in this Agreement but which are necessary for or inherent in the
performance and delivery of the services described in this subclause (a));
(b) the services, functions and responsibilities reflected in the Base
Case; and (c) providing support for the Services as expressly described in
this Agreement (foregoing subsections (a) through (c), collectively, the “Base
Services”). SAVVIS shall perform the Services at levels of accuracy, quality,
completeness, timeliness, responsiveness, resource efficiency and productivity
that are equal to or higher than the generally accepted industry standards of
providers of information technology services performing such services or
services substantially similar to the Services. Each Party’s obligations are
solely as explicitly set forth in this Agreement, including the SOW.


 


4.2.          Continuous
Improvement and Best Practices. SAVVIS shall (a) as part of its total
quality management process, identify and implement ways to improve the Services
and Service Levels and (b) identify and apply to the Services proven
techniques and technology from within its operations or other third party
processes that would materially benefit Cowen either operationally or
financially, provided that (i) notwithstanding the foregoing, if SAVVIS has
used reasonable efforts to identify improvements as required by this provision,
SAVVIS shall not be responsible or liable for failing to identify any specific
improvement not specifically set forth herein, and (ii) any implementation of
the matters described in (a) or (b) will be subject to the Change Control
Procedures. Upon Cowen’s request, SAVVIS shall provide Cowen with reasonable
access to SAVVIS’ specialized services, personnel and resources that are
applicable to Cowen’s business. As part of the Base Services, SAVVIS shall
prepare technology assessments in accordance with Section 4.3.


 


4.3.          IT
Infrastructure. SAVVIS has reviewed and participated in the development of
Cowen’s planned IT infrastructure (the “IT Infrastructure”) solely as it
relates to the SAVVIS Services to be implemented as of the Transition
Completion Date, and to that extent has validated and approved the technical
architecture and product standards therefor set forth on Schedule D, but has
not otherwise reviewed and will not otherwise be liable for Cowen’s plans. If
the IT Infrastructure is deficient such that the Base Services fail to meet the
Service Levels, SAVVIS shall be responsible for taking all corrective actions
to remedy such deficiencies, including the purchase and implementation of
additions or upgrades to Systems components, the costs of which shall be borne
by SAVVIS.


 


As part of the Base Services, SAVVIS shall assist
Cowen in preparing long-term strategic information technology assessments and
short-term implementation assessments on an annual, face-to-face basis;
provided that, if such assistance exceeds eighty (80) hours per year, Cowen
shall pay SAVVIS for the time spent in excess of such allotment in accordance
with SAVVIS’ time and materials rates set forth in Schedule C. Each such
assessment shall cover a review of SAVVIS’ performance of the Services under
this Agreement for the prior year and planning for the next three (3) years (or such lesser number of years as then
remain in the Term of this Agreement) as it relates to the Services being
provided by SAVVIS. Such assistance to be provided by SAVVIS shall
include, in each case on Cowen’s written request: (a) assessments of the
then-current Cowen information technology standards; (b) analyses of the
appropriate direction for such Cowen information technology standards in light
of business priorities and business strategies of which Cowen has provided
notice to SAVVIS, SAVVIS’ technical knowledge/expertise and competitive market
forces; and (c) recommendations regarding information technology architectures
and platforms, software and hardware products, information technology
strategies and directions and other enabling technologies. With respect to each
recommendation, SAVVIS shall provide Cowen, upon Cowen’s request, with any or
all of the following (which shall be good faith estimates but shall not bind
either Party unless agreed to in writing by the Parties pursuant to the Change
Control Procedure): (u) proposed


 


8

















 


software and
hardware strategies and direction; (v) cost projections; (w) the changes, if
any, in the personnel and other resources required to operate and support the
changed environment; (x) the resulting anticipated impact on Cowen’s
information technology costs; (y) the expected performance, quality,
responsiveness, efficiency, reliability, security risks and other service
levels; and (z) general plans and projected time schedules for development and
implementation. Should Cowen choose to implement changes as a result of these
assessments, such changes shall be subject to the Change Control Procedures.


 


The assistance to be provided by SAVVIS pursuant to
the preceding paragraph shall also include (a) the performance by SAVVIS
of an ongoing review of new information technology which is available in the
marketplace and industry trends with respect to information technology of the
type used by businesses similar to Cowen; and (b) the preparation and
delivery to Cowen of a written report summarizing its finding which result from
the review described in sub-item (a) of this sentence which report will be
prepared and delivered on an annual basis or more frequently as appropriate
based on the significance of SAVVIS’ findings.


 


4.4.          Knowledge
Sharing. As part of the Base Services, up to twice every twelve (12) months
during the Term, and on request after at least thirty (30) days’ notice from
Cowen, SAVVIS shall meet with representatives of Cowen in order to: (a) explain
to Cowen how the Systems work and should be operated by Cowen; (b) explain to
Cowen how the Services are being provided, and how the Services are going to
be, or are proposed to be, provided in the future; and (c) provide to Cowen
such training and documentation as may be necessary to enable Cowen to operate
the Systems during the Term of this Agreement.


 


4.5.          Dedicated
Service Locations; Dedicated Environments.


 


(a)           Dedicated
Service Locations. Except as provided in the SOW or pursuant to the Change Control Procedures, all Services will be
provided from dedicated space at the SAVVIS Service Locations set forth in the
SOW. Any provision of Services from space which is not dedicated (i.e., SAVVIS provides services to third
parties from such space) shall require Cowen’s prior written consent in each
instance.


 


(b)           Dedicated
Environment. Except as provided in the SOW or pursuant to the Change Control Procedures, SAVVIS shall not
migrate or relocate any of the Services or any of Cowen’s Confidential
Information (including Cowen Data) to a shared hardware or software environment
without Cowen’s prior written approval. Prior to migrating or relocating any of
the Services or Cowen’s Confidential Information (including Cowen Data) to a
hardware or software environment that is shared with any third party, SAVVIS
shall provide to Cowen, for Cowen’s approval, a proposal for such migration or
relocation, including cost and price benefits and savings or risks to Cowen
during the Term and following the expiration or termination of this Agreement;
provided that any such proposal shall be subject to Cowen’s approval in its
sole discretion.


 


4.6.          Cooperation.
During the Term, subject to Sections 3.3 and 3.4, and following any expiration
and/or termination of this Agreement (in whole or in part), Cowen may enter
into, and SAVVIS shall not interfere with Cowen’s entering into, an arrangement
with a third party or third parties pursuant to which such third party or third
parties may provide services similar to the Services (the “Third Party Services”).
Subject to Sections 3.3 and 3.4, Cowen shall not be obligated to use
SAVVIS for services of the type covered in the Services, or for any additional
services or New Services. SAVVIS shall reasonably cooperate with all other
vendors and contractors providing services to Cowen that are related to or
dependent upon the Services.


 


9

















 


4.7.          Office
Space. Each party shall provide at its Service Locations, without charge
and on an as-available basis, access to secure furnished office space and
associated facilities such as telephones, power and lighting for use by the
other Party’s Project Manager, personnel and Agents providing services at such
Service Locations.


 


4.8.          Policy
and Procedures Manual. By not later than May 1, 2005, SAVVIS shall
prepare and deliver to Cowen for review and approval SAVVIS’ Policy and
Procedures Manual (the “Policy and Procedures Manual”), which shall set forth
in detail (a) how SAVVIS shall perform the Services, (b) the
Equipment and Software used to provide the Services, and (c) documentation
that provides further information regarding the Services (such as, for example,
operations manuals, user guides, forms of Service Level reports, call lists,
escalation procedures, emergency procedures, and requests for approvals or
information). The Policy and Procedures Manual shall further describe the
activities SAVVIS then contemplates it will undertake in order to provide the
Services, including, where appropriate, direction, supervision, monitoring,
quality assurance, staffing, reporting, planning and overseeing activities, and
includes acceptance testing and quality assurance procedures. SAVVIS shall
update the Policy and Procedures Manual during the Term as appropriate, and
such updates shall also be provided to Cowen for review within fifteen (15)
days of such update. SAVVIS shall perform the Services in accordance with the
then-current version of the Policy and Procedures Manual other than in
exceptional circumstances; provided, however, that the Policy and Procedures
Manual shall be for operational purposes only, and shall not constitute a
contractual document. Accordingly, in the event of a conflict between the
provisions of this Agreement and a Policy and Procedures Manual, the provisions
of this Agreement shall control, and Cowen’s acceptance of a Policy and
Procedures Manual shall not be deemed a waiver of any rights of Cowen or
SAVVIS.


 


4.9.          Quality
Assurance. SAVVIS shall develop and implement quality assurance processes
and procedures in an endeavor to ensure that the Services are performed in an
accurate and timely manner, in accordance with (a) the SOW and the Service
Levels, (b) generally accepted practices of the information technology
industry applicable to the Services, and (c) the terms, conditions and
requirements of this Agreement. Such procedures shall include creation and
execution of test plans, timeline reviews, verification and acceptance for
Cowen to assess the quality and timeliness of SAVVIS’ performance.


 


4.10.        [INTENTIONALLY LEFT BLANK]


 


4.11.        Acceptable
Use.


 


(a)           SAVVIS’
network and Service(s) may only be used in accordance with this Agreement.
Cowen and third parties to whom Cowen provides access to the Services will comply
at all times with all applicable laws and regulations with respect to use of
the Internet or SAVVIS’ IIP through the Services, and SAVVIS’ Acceptable Use
Policy as set forth in this Section 4.11 (“AUP”).


 


(b)           SAVVIS
reserves the right to monitor Cowen’s activity for internal network utilization
and reliability purposes. SAVVIS’ utilization and reliability monitoring does
not include examination of Cowen data unless (i) such examination is deemed
necessary to troubleshoot a Cowen issue, and Cowen consents in writing to such
examination; or (ii) such examination is pursuant to any judicial order, search
warrant, or statutory requirement, in which event SAVVIS shall provide prior
written notice (or if it is not possible for SAVVIS to provide prior written
notice, prompt subsequent written notice) thereof to Cowen and cooperate with
Cowen to reduce the


 


10

















 


scope of any such
order, warrant or requirement to the extent practicable and not precluded by a
judicial order, search warrant, or statutory requirement. Any monitoring by
SAVVIS is subject to the confidentiality provisions set forth in this
Agreement.


 


(c)           Cowen
acknowledges that SAVVIS exercises no control whatsoever over the content (any
and all content, including but not limited to data, text, information,
multimedia images (e.g. graphics, audio and video files), software (other than
the SAVVIS Software), applications, or other materials, or any content shared
or processed on equipment under the control of SAVVIS on behalf of Cowen
(collectively “Content”)) of Cowen or Cowen’s end users and/or customers. It is
the sole responsibility of Cowen to ensure that the Content that Cowen
transmits, stores, uploads or downloads, complies with this AUP and all applicable
laws and regulations with respect to use of the Internet or SAVVIS’ IIP through
the Services. Cowen shall not use the Service(s) in an unlawful, fraudulent
manner, or in a manner that otherwise exposes SAVVIS to legal liability, and
without limiting the foregoing shall not use the Service to knowingly transmit,
store, upload or download any of the following: material in violation of a
copyright, threatening, defamatory or obscene material, material protected by
trade secret or material that Cowen does not otherwise have the right to use;
to transmit unsolicited commercial e-mail messages to people or entities with
whom Cowen does not have a pre-existing business relationship; to knowingly
transmit viruses, worms or other malicious codes; to use the Services as a
return address to receive replies to unsolicited e-mails to people or entities
with whom Cowen does not have a pre-existing business relationship; or to
engage in “Excessive Cross-Posting,” “Excessive Multi-Posting” or “Usenet spam”
as those terms are generally understood in the industry (any of the uses
described in the foregoing, a “Service Misuse”).


 


(d)           Cowen
agrees to cooperate with SAVVIS and otherwise exercise all reasonable
commercial efforts in taking any corrective action necessary to address and
cure as expeditiously as possible any of the following conditions with respect
to Cowen’s use of the Internet or SAVVIS’ IIP via the Services: (i) a condition
which is required to be corrected by any law, regulation, court order, or other
governmental request or order; (ii) a condition posing a threat of interference
with, damage to, or degradation of SAVVIS’ network or its customers; (iii) any
condition that poses a material hazard to person or property; or (iv) Service
Misuse, as defined above (any of the foregoing, a “Condition Requiring
Correction”). Except as set forth in (A) or (B) below, SAVVIS shall provide
Cowen with written notice and notice by e-mail to Cowen’s Project Manager of a
Condition Requiring Correction so that such Condition Requiring Correction may
be corrected without impact on Service, which notice (1) whenever practicable
will be provided at least ten (10) days in advance of the time when such
correction is required to be completed and (2) will contain detailed information
(to the extent known to SAVVIS) regarding the nature and cause of the Condition
Requiring Correction. In the event Cowen (w) has not corrected the Condition
Requiring Correction within ten (10) days of receipt of such notification, and
(x) has not promptly commenced such correction and diligently proceeded with
such correction until it is completed, subject to SAVVIS having complied with
its obligations in the following paragraph, SAVVIS may suspend such portion of
the Services used to access the Internet or SAVVIS’ IIP if involved in the
Condition Requiring Correction (all such Services, collectively the “Subject
Services”), as SAVVIS reasonably deems necessary to prevent the continuation of
the Condition Requiring Correction, until such time as the Condition Requiring
Correction is corrected. SAVVIS reserves the right, however, to act immediately
and without prior notice (but with prompt subsequent notice), subject to the
conditions below, and subject to SAVVIS complying with its obligations in the
following paragraph, to suspend any or all of the Subject Services (A) to the
extent reasonably necessary to respond to a court order or government
requirement that certain conduct must be immediately stopped or (B) when SAVVIS
reasonably determines: (1) that it faces an imminent risk of sanctions, civil
liability or


 


11

















 


prosecution by
reason of such Condition Requiring Correction and that such suspension is a
necessary measure to prevent the imposition of such sanctions, civil liability,
or prosecution; (2) that such Condition Requiring Correction poses an imminent
risk of harm to or interference with the integrity or normal operations or
security of SAVVIS’ network or networks with which SAVVIS is interconnected or
interferes with another customer’s use of SAVVIS services or the Internet and that such suspension is a necessary
measure to prevent such harm or interference; or (3) that such Condition
Requiring Correction otherwise presents imminent risk of material hazard to
person or property; provided that, notwithstanding the foregoing, (y) prior to
suspending any Service(s) pursuant to this sentence, SAVVIS shall take all
necessary efforts that are reasonably practicable under the circumstances to
mitigate any risk of sanctions, civil liability or prosecution and to prevent
the need for such suspension (such as explaining to the entity requiring such
suspension the impact of such suspension on Cowen’s business and working with
such entity to see if there is another alternative to suspension) and (z) prior
to so suspending such Services, where reasonably practicable under the
circumstances (or, if not so practicable, as soon as reasonably practicable
under the circumstances), provide
a formal opinion of outside counsel to Cowen for reasons noted in subitems A or
B(1), that such suspension complies with subitem (A) of this sentence, or that
there is a legal basis for SAVVIS’ determination described in subitem (B) of
this sentence.


 


Notwithstanding the foregoing or any other provision
to the contrary, SAVVIS will work with Cowen to correct any Condition Requiring
Correction and to restore any suspended Services as soon as reasonably possible
after the date of the commencement of such suspension. Cowen will promptly report
to SAVVIS any issue of which Cowen becomes aware that could compromise the
stability, service or security of any user or system connected to SAVVIS
networks.


 


Section 5.              EQUIPMENT


 


5.1.          Generally.
SAVVIS shall provide the Base Services using the Equipment and shall obtain and
have financial, operational, maintenance and support responsibilities for the
Equipment.


 


5.2.          Systems
Maintenance. As part of the Base Services, SAVVIS shall provide Systems
(both Equipment and SAVVIS Software) maintenance and support services,
including upgrades and replacement for the Equipment and SAVVIS Software, in
order to perform the Base Services in accordance with the Service Levels as
defined herein and the other terms and conditions of this Agreement, as such
maintenance services are further described in the SOW. For avoidance of doubt,
it is understood that SAVVIS Software does not include applications provided by
Cowen or a Cowen Agent.  SAVVIS shall not install or use any such upgrade or replacement without first
notifying Cowen and obtaining Cowen’s written consent. Upon receipt of Cowen’s
consent, SAVVIS shall provide the replacement or upgraded Equipment or Software
as specified in SAVVIS’ notice and shall be responsible, at its own expense,
for any further upgrades or modifications to the Equipment and/or SAVVIS
Software which are necessary as a result of SAVVIS’ use of replacement or
upgraded Equipment or SAVVIS Software. Upon Cowen’s request and as part of the
Base Services, SAVVIS shall be responsible for configuring, installing,
testing, implementing and maintaining (including warranty services) all such
replacements, upgrades and modifications to the Equipment and SAVVIS Software.


 


5.3.          Telecommunications/Connectivity.
As part of the Base Services, SAVVIS shall provide the telecommunications and
connectivity products and services as described in the SOW.


 


12

















 


5.4.          [INTENTIONALLY LEFT BLANK]


 


5.5.          SAVVIS
Equipment at Cowen Service Locations. SAVVIS shall have the right to place
certain telecommunications/ connectivity Equipment described in the SOW at the
Cowen Service Locations set forth in the SOW. Such use of the Cowen Service
Locations does not constitute a leasehold interest in favor of SAVVIS, and
SAVVIS shall only have the right to access and use of such space for the
purpose of installing and maintaining such Equipment, solely for the purposes
of providing services to Cowen and its Affiliates. Any such space is provided
on an “as-is” basis. The risk of loss, theft, destruction or damage to any
Equipment placed by SAVVIS at a Cowen Service Location shall remain with Cowen,
except to the extent caused by SAVVIS’ or
SAVVIS’ Agent’s fault or negligence. Cowen shall provide and maintain a
suitable operating environment as reasonably specified by SAVVIS, and shall not
knowingly subject or expose the Equipment or SAVVIS personnel to any hazardous
materials. Cowen agrees not to move, configure, reconfigure, program, or
otherwise affect the Equipment in any manner without the prior written consent
of SAVVIS. Upon
the latter of the termination or expiration of this Agreement and the last day
of the Termination/Expiration Period, SAVVIS’ right to place such Equipment at
a Cowen Service Location shall cease and SAVVIS shall within forty-five (45)
days, at its sole cost and expense, remove all such Equipment and return such
space to Cowen in substantially the same condition as when SAVVIS began use of
such space, normal wear and tear excepted. Access to any Cowen Service Location
by SAVVIS shall be subject to its obligations in Sections 11 and 18.2.


 


Section 6.              NEW SERVICES


 


6.1.          New
Services. “New Services” shall mean services that are outside the scope of
the Services then in effect, including in any SOW. Cowen, in its sole discretion,
may, from time to time during the Term, request that SAVVIS perform a New
Service. Upon receipt of such a request from Cowen, if such New Service is
available as a standard and supported product from SAVVIS or SAVVIS otherwise elects to provide it,
SAVVIS shall provide Cowen with: (a) a written product description of the
New Service, (b) a schedule for commencing and completing the New Service;
(c) SAVVIS’ prospective charges for such New Service, which charges shall
be stated in the pricing structure reasonably specified by Cowen
(e.g., time and materials, fixed price, per-unit, “not to exceed”);
(d) projected personnel and operational requirements for using such New
Service; and (e) when applicable, acceptance test criteria and procedures
for any new deliverables or services. SAVVIS shall not begin performing any New
Service or be responsible for undertaking any activity required to allow it to
perform such New Service, and Cowen shall not be obligated to pay for any New
Service, until the Parties have reached written agreement as to the New
Services to be provided and the charges therefor, which, in Cowen’s case will
be agreed to by the Cowen CIO or CAO. For
avoidance of doubt, time and materials charges (and per-unit charges where
charges are for units defined in Schedule C that are applicable to the New
Service) quoted pursuant to (c) above shall be as set forth in Schedule C
unless otherwise agreed by the Parties.


 


Section 7.              CHANGES IN CIRCUMSTANCES


 


7.1.          Business
Downturn. “Business Downturn”
means an unplanned, measurable change in business conditions affecting Cowen’s
business that is outside of Cowen’s control and that materially and negatively
affects Cowen’s need for the level of Services provided hereunder such that
Cowen’s requirement for such Services is reduced to a level below seventy-five
percent (75%) of the Minimum Monthly Commitment. In the event of a Business
Downturn, after the second year of this Agreement, and not due to a replacement
of any portion


 


13

















 


of the Services
with the services or products of another provider, Cowen and SAVVIS shall
negotiate in good faith appropriate and commercially reasonable changes to this
Agreement, which may include adjustments to price, term, commitment, or a
combination thereof. The parties shall continue performance under this
Agreement while they are negotiating and no changes to this Agreement will be
binding unless and until they are set forth in an amendment hereto entered into
pursuant to Section 37.11. The terms of this Section 7.1 shall apply with
respect to reductions in Services in excess of, and shall not limit or modify,
Cowen’s rights with regard to any reductions in Services pursuant to Section
3.4.


 


Section 8.              TRANSITION


 


8.1.          Transition
Services.


 


(a)           SAVVIS
has provided input to HP in developing a plan (the “Transition Plan”)
describing in detail the transition of Cowen’s current information technology
services to the Base Services (the “Transition”), including a plan for
Transition Acceptance Testing. SAVVISacknowledges that HP and Cowen have
scheduled to complete such transition by June 6, 2005 and will cooperate
with such transition in accordance with such schedule.


 


(b)           Both
Parties acknowledge and agree that HP, not SAVVIS, shall be responsible to
Cowen for the implementation of the Transition Plan and the Transition Services
thereunder. Both Parties acknowledge and agree that SAVVIS will be providing
Services under the Transition Plan as a subcontractor to HP, and that (i)
SAVVIS will look solely to HP, and not to Cowen, for any compensation or any
Losses arising from the Transition services; and
(ii) Cowen will look solely to HP, and not to SAVVIS, for any remedy or
any Losses arising from the Transition services, provided
that, for avoidance of doubt, the limits and restrictions in sub-items (i) and
(ii) of this sentence do not apply to such Services provided by SAVVIS under
this Agreement after the Service Commencement Date and prior to the completion
of Transition.


 


(c)           The
Parties agree that Transition for certain Services will be completed, and Cowen
will accept such Services on a service by service basis pursuant to the
Transition Acceptance Testing described in Sections 8.2 and 8.3 below and upon
such acceptance such Services will be provided pursuant to (and subject to the
terms of) Section 4.1.


 


8.2.          Transition
Acceptance Tests. SAVVIS shall reasonably cooperate in transition
acceptance testing solely to the extent it relates to the Services being
provided by SAVVIS (the “Transition Acceptance Testing”).


 


8.3.          Transition
Completion. Upon the date that the Transition Acceptance Testing results in
the achievement of the Acceptance Criteria for all Services in the Base Case
(such date, the “Transition Completion Date”), the transition shall be deemed
complete. Upon the date that the Transition Acceptance Testing results in the
achievement of the Acceptance Criteria with respect to any individual Service,
Cowen shall provide written notice of
completion and acceptance of the Service (on a service by service basis) at
Cowen’s discretion, and SAVVIS shall commence the provision of the particular
Service to Cowen pursuant to the terms of this Agreement.


 


Section 9.              LICENSES AND PERMITS


 


9.1.          SAVVIS
Responsibility. SAVVIS is responsible for obtaining, and shall pay all
costs related to obtaining, all necessary licenses, consents, approvals,
permits and authorizations required by any Laws, which licenses, consents,
approvals, permits and


 


14

















 


authorizations are
legally required to be obtained and necessary for SAVVIS’ performance and
delivery of the Services hereunder, except to the extent necessary to accord
SAVVIS access to or use of Cowen Premises, Cowen Data or intellectual property
owned by or licensed to Cowen as
necessary for SAVVIS’ performance under this Agreement.


 


9.2.          Cowen
Responsibility. Cowen is responsible for obtaining, and shall pay all costs
related to obtaining, all necessary licenses, consents, approvals, permits and
authorizations required by any Laws, which licenses, consents, approvals,
permits and authorizations are legally required to accord SAVVIS access to or
use of Cowen Premises, Cowen Data or intellectual property owned by or licensed
to Cowen as necessary for SAVVIS’
performance under this Agreement.


 


Section 10.            COMPLIANCE WITH LAW; CHANGES IN LAW


 


10.1.        Responsibilities.
As part of the Base Services, SAVVIS shall use commercially reasonable efforts
to identify changes in applicable legislative enactments which have a material
adverse impact on its ability to deliver the Services. SAVVIS shall notify
Cowen of such changes known to SAVVIS and shall work with Cowen to identify the
impact of such changes on how Cowen uses the Services. Cowen and SAVVIS shall
promptly make, through the Change Control Procedures, any modifications to the
Services that are reasonably required to continue the Services in light of such
changes. If the need for such modifications results from SAVVIS’ changes in its
business or products (except as may have been requested by Cowen) or are
necessary to continue providing the Services hereunder in light of such
legislative changes, SAVVIS shall make such modifications at its own expense.
If the need for such modifications relates to Cowen’s business or results from
other than (i) changes made by SAVVIS to its business or products or (ii) changes that are necessary to
continue providing the Services hereunder in light of such legislative changes,
SAVVIS shall make such modifications only at Cowen’s expense; otherwise, SAVVIS
shall make such modifications at its own cost and shall ensure that such
modifications do not materially and adversely affect Cowen. Subject to this
Section 10.1, SAVVIS shall be responsible for any fines and penalties imposed
on SAVVIS and Cowen arising from any noncompliance by SAVVIS or the SAVVIS
Agents with the Laws in respect of its delivery of Services, unless caused by
Cowen or its agents or contractors, and Cowen shall be responsible for any
fines and penalties imposed on SAVVIS and Cowen arising from any noncompliance
by Cowen or the Cowen Agents with the Laws in respect of its purchase or use of
Services, unless caused by SAVVIS or SAVVIS Agents.


 


Section 11.            COWEN SERVICE LOCATIONS


 


11.1.        Use
of Cowen Service Locations. For the period of Transition and throughout the
Term, SAVVIS shall use Cowen Service Locations set forth in Schedule A for the
sole and exclusive purpose of installing, maintaining, supporting and servicing
certain telecommunications Equipment (as described in Section 5.5) through
which the Services are provided.


 


11.2.        Procedures.
SAVVIS shall, and shall cause SAVVIS Staff and SAVVIS Agents to, not commit or
permit waste or damage to the Cowen Service Locations (normal wear and tear
excepted), shall not use the Cowen Service Locations for any unlawful purpose
or act, and shall comply with all of Cowen’s standard policies and procedures
regarding access to and use of the Cowen Service Locations, including
procedures for the physical security of the Cowen Service Locations and
procedures for the security of computer and telecommunications


 


15

















 


networks, to the
extent Cowen gives advance written notice of such policies and procedures to
SAVVIS. In the event SAVVIS becomes aware of any breach or attempted breach of
security in or involving any Cowen Service Location, then SAVVIS will
immediately notify Cowen of such event, will assist in ascertaining and
containing any damage, and will cooperate with Cowen and applicable
Governmental Authorities in addressing such event(s) (including without
limitation in bringing any appropriate legal claims).


 


11.3.        Structure.
SAVVIS shall not make any improvements or changes involving structural,
mechanical or electrical alterations to the Cowen Service Locations without
Cowen’s written approval.


 


Section 12.            SAVVIS FINANCIAL REPORTING


 


Beginning with the second quarter of 2005, SAVVIS will
provide to Cowen, within forty-five (45) days following the end of each of its
fiscal quarters, and within sixty (60) days following the end of its fiscal
year, a copy of SAVVIS’ financial statements, including its form 10Q or form
10K. If, for any quarter, SAVVIS does not meet the thresholds so that there has
not been a Material Adverse Change in such quarter (as such thresholds are set
forth in Section 31.5), then the SAVVIS senior management will meet with Cowen
senior management within fifteen (15) days after the date on which the
financial statements are due to Cowen and report to Cowen how SAVVIS will
remedy the Material Adverse Change, except to the extent that SAVVIS is
prohibited by law from providing such information.


 


Section 13.            SERVICE LEVELS


 


13.1.        Service
Levels. SAVVIS shall perform the Services with promptness and diligence, in
a workmanlike manner and in accordance with the Service Levels set forth in the
SOW (and such other service levels as may be agreed upon for those services)
and the standards set forth in Section 4.1. Notwithstanding anything to
the contrary herein, and for avoidance of doubt, Cowen’s sole and exclusive
remedies for failure to satisfy any Service Level shall be the Service Level
Remedies set forth in the SOW, but these shall not be Cowen’s sole and
exclusive remedies in event that (i) the circumstances giving rise to the
failure to satisfy the Service Level also constitute a breach of any other
provision of this Agreement or (ii) Cowen terminates this Agreement pursuant to
Section 31.8 of this Agreement.


 


13.2.        Measurement
and Monitoring Tools. As of the Service Commencement Date for a particular
service, SAVVIS shall implement and utilize the measurement and monitoring
tools and procedures set forth in the SOW which provide information at a level
of detail sufficient to measure and report SAVVIS’ performance of the Services
against the Service Levels as specified in the SOW (and such other service
levels as may be agreed upon for those services). SAVVIS’ use of such
measurement and monitoring tools shall not adversely affect the performance of
the Equipment and/or Systems, and SAVVIS will promptly replace any measurement
and monitoring tool which degrades or otherwise negatively impacts performance
of the Equipment and/or Systems. SAVVIS shall ensure that SAVVIS’ use of such
measurement and monitoring tools does not cause the Services to fail to meet
the Service Levels and does not materially reduce the amount of
excess capacity which is available in the Services and dedicated for Cowen’s
use pursuant to the SOW. SAVVIS acknowledges that such measurement and
monitoring tools shall be subject to audit by Cowen as set forth in Section 27.
Any customization or modification of SAVVIS’ existing tools to meet Cowen’s
needs will be subject to the Change
Control Procedures.


 


16

















 


13.3.        Reports.
As part of the Base Services, SAVVIS shall provide performance and other
reports to Cowen as set forth in Schedule A, as amended from time to time
by the mutual agreement of the parties to address new reports or changes to
reports. The information contained in such reports shall be the property and
Confidential Information of both Cowen and SAVVIS. As one such report, SAVVIS
shall provide a monthly performance report, which shall be delivered to Cowen
within ten (10) days after the end of each calendar month, describing SAVVIS’
performance of the Services in the preceding month (the “Monthly Performance
Report”). Such Monthly Performance Report shall:


 


(a)           separately
address SAVVIS’ performance, measured against the metrics set forth in the
Service Levels in each area of the Services;


 


(b)           for
each area of the Services, assess the degree to which SAVVIS has attained or
failed to attain the pertinent objectives in that area as described in this
Agreement, including with respect to the Service Levels;


 


(c)           explain
deviations from the Service Levels and other applicable performance standards
and include a plan for corrective action for each such deviation;


 


(d)           describe
the status of problem resolution efforts, ongoing projects, and other initiatives, and the status of
SAVVIS’ performance with respect to change requests;


 


(e)           set
forth a record of the material Equipment, Software and personnel changes that
pertain to the Services and describe planned changes during the upcoming month
that may affect the Services;


 


(f)            set
forth the utilization of all resources for the month and report on utilization
trends and statistics; and


 


(g)           include
such documentation and other information as Cowen may reasonably request for
purposes of verifying compliance with, and meeting the objectives of, this
Agreement.


 


13.4.        Cowen
Satisfaction Surveys. No less frequently than twice annually, SAVVIS shall
perform customer satisfaction surveys, in the form and manner typically
conducted by SAVVIS with its other customers, and shall share the results of
those surveys with Cowen. All such results shall be deemed the property and
Confidential Information of both Cowen and SAVVIS.


 


13.5.        Benchmarking.
Cowen reserves the right from time to time, at its discretion, beginning after
the thirty-sixth (36th) month of this Agreement and no more than
once annually, to obtain the services of an independent third party (the “Benchmarker”)
to benchmark the cost, charges and performance of the Services. Such third
party shall be subject to SAVVIS’ prior written approval, shall not be, or be
owned or controlled by, a competitor of SAVVIS or have breached any
confidentiality obligation to SAVVIS, shall be independent of the Parties and
shall be qualified to do the work and well recognized in the industry and a
competent benchmarking entity. Cowen will bear the costs and expenses of
conducting the benchmark and all results of the benchmark and materials created
pursuant to the Benchmark shall be Cowen’s sole and exclusive property and Confidential
Information, except to the extent they incorporate SAVVIS’ Confidential
Information. The Benchmarker shall perform the benchmarking in accordance with
the Benchmarker’s reasonable documented procedures which shall be provided to
the Parties


 


17

















 


prior to the start
of the benchmarking process and upon which the Parties may comment prior to the
benchmarking, as modified herein. The Benchmarker shall compare the costs,
charges and/or performance criteria of the Services under this Agreement, as
appropriate and in the aggregate, to the costs, charges, and/or performance
criteria for offerings of a like mix of amounts and types of Services to
similarly situated customers making like term and volume commitments by a
representative sample of vendors performing services similar to the Services.
The Benchmarker shall select the representative sample from vendors
(a) identified by the Benchmarker, and (b) identified by a Party and
approved by the Benchmarker. The Benchmarker is to conduct a benchmarking as
promptly as is prudent in the circumstances. Each Party shall be provided a
reasonable opportunity to review, comment on and request changes in the
Benchmarker’s proposed findings. Following such review and comment, the
Benchmarker shall issue a final report of its findings and conclusions. Based
upon the final results of such benchmarking, SAVVIS shall cooperate with Cowen
to investigate variances, if any, in excess of five percent (5%) compared
against the midpoint of the fees charged with respect to other well-managed
outsourcing organizations and if such results show that the Fees paid by Cowen
are more than five percent (5%) greater than the midpoint of fees charged with
respect to other well-managed outsourcing organizations, then SAVVIS shall have
sixty (60) days to reduce the Fees charged hereunder to such midpoint. Any
dispute as to such deficiencies, variances or reduction shall be resolved
pursuant to Section 30.


 


13.6.        Failure
to Perform.


 


(a)           Service
Level Remedies. SAVVIS recognizes that Cowen is paying SAVVIS to deliver
the Services at specified Service Levels. If SAVVIS fails to meet any Service
Level(s), then Cowen shall be entitled to the credits and other remedies set
forth in the SOW (the “Service Level Remedies”). SAVVIS acknowledges and agrees
that such Service Level Remedies shall not be deemed a penalty.


 


(b)           Failure.
As part of the monthly reviews described in Section 16.3(a), SAVVIS shall
review with Cowen the Monthly Performance Report (as defined in Section 13.3).
If SAVVIS has failed to satisfy any of the Service Levels, SAVVIS shall
promptly and in accordance with the Service Levels (i) investigate and
report on the causes of the problem; (ii) advise Cowen, as and to the
extent reasonably requested by Cowen, of the status of remedial efforts that
will be and/or are being undertaken with respect to such problems;
(iii) use best efforts to correct the problem(s) that led to such failure
to meet Service Levels associated with Critical Infrastructure (as described in
the SOW), and begin meeting such Service Levels; (iv) use commercially
reasonable efforts to correct the problem(s) that led to such failure to meet
any other Service Levels and begin meeting such Service Levels; and
(v) take appropriate measures to prevent the applicable problem(s) from
recurring.


 


(c)           Root
Cause Analysis. Following any Severity Level 1 or 2 failure, SAVVIS
shall, as part of the Base Services: (i) immediately upon learning of such
failure, commence a root cause analysis to identify the cause of such failure,
and continue on a continuous and diligent basis to perform such analysis within
normal business hours until it is complete; (ii) within two (2) weeks
after commencing such root cause analysis, provide Cowen with a report
detailing the results of such root cause analysis and a procedure for
correcting such failure; and (iii) provide Cowen with assurances
reasonably satisfactory to Cowen that such failure will not recur after the
procedure has been completed.


 


(d)           In
the event SAVVIS or a SAVVIS vendor or
SAVVIS Agent needs to
access any Cowen site to maintain or repair or otherwise affect the Service(s),
Cowen shall


 


18

















 


cooperate in a
timely manner and provide access to the Cowen site and assist SAVVIS or the SAVVIS vendor or SAVVIS Agent to
affect such maintenance, subject to the provisions of this Agreement
regarding access to Cowen Premises.


 


Section 14.            SERVICE LOCATIONS


 


14.1.        Service
Locations. The Services shall be provided from (a) the SAVVIS Service
Locations, and (b) the Other Service Locations; provided, however, that,
the use of any such Other Service Location(s) for the provision of Services
shall be subject to Cowen’s prior written approval. To the extent SAVVIS agrees
to allow Cowen or Cowen Agents to place Equipment at SAVVIS Service Locations,
such placement (and Cowen and Cowen Agent access to such SAVVIS Service
Locations for purposes of installing or maintaining such Equipment) shall be in
accordance with the terms and conditions set forth in Schedule I, which shall
limit Cowen and Cowen Agent access thereunder to physically separate secured
areas (“Co-location Cages”). For the avoidance of doubt, SAVVIS shall at all
times perform the Services from, and provide the Services to, Cowen (including
disaster recovery services) from a location within the continental United
States. Any incremental expense incurred by Cowen as a result of any relocation
of the provision of Services to an Other Service Location shall be promptly
reimbursed to Cowen by SAVVIS, except that, to the extent such relocation is at
Cowen’s request or occurs because a Cowen Service Location is no longer
available for the purpose, Cowen shall bear all cost of such relocation. SAVVIS
and SAVVIS Agents may not provide or market any products or services to a third
party from any of the Cowen Service Locations without Cowen’s prior written
consent.


 


14.2.        Safety
and Security Procedures. As part of the Base Services, and without limiting
SAVVIS’ obligations under Section 27.5, SAVVIS shall maintain and enforce, and
shall ensure that SAVVIS Agents enforce, at the SAVVIS Service Locations safety
and security procedures that are no less restrictive than those imposed by
SAVVIS at the SAVVIS Service Locations as of the Effective Date, and will
maintain those procedures in conformance with generally accepted industry
practice. At a minimum, SAVVIS shall comply, and shall be fully responsible for
the compliance of SAVVIS Agents, with all safety and security procedures that
are in effect at the Service Locations. As part of the Base Services, SAVVIS
shall maintain, and shall be responsible for the compliance of SAVVIS Agents
with, safety and security procedures for Cowen’s Systems and telecommunications
infrastructure, which safety and security procedures are intended to protect
the data and information of Cowen and its Affiliates and their vendors
(including without limitation all of Cowen’s Confidential Information and all
Cowen Data) from unauthorized access or use. SAVVIS shall immediately inform
Cowen of, and shall require SAVVIS Agents to immediately inform SAVVIS of, any
known breaches in security or potential breaches in security affecting Cowen at
any of the Service Locations.


 


Section 15.            SOLICITATION


 


15.1.        Prohibited
Solicitation. Except as otherwise provided in this Agreement or as
otherwise agreed by the Parties, each Party (the “Soliciting Party”) agrees
that during the Term of this Agreement it shall not, without the other Party’s
prior written consent, solicit for employment or otherwise solicit the services
of any person, employed then by the other Party, who became known to the
Soliciting Party or its Affiliate in connection with the performance of this
Agreement. The Parties agree that the provisions of this Section15.1 shall not
exclude, preclude or limit any available actions at law or in equity or
otherwise (including without limitation any form of damages or any injunctive
or equitable relief) for misappropriation of trade secrets or other
intellectual property, arising from or out of the hiring, solicitation or
recruitment


 


19

















 


of the other Party’s
employee or former employee. This provision does not prohibit either Party from
(i) publishing help wanted advertisements or making other general postings via
other media of employment opportunities or listings not targeted to the
employees of the other Party, (ii) hiring an employee of the other Party who
responds to such advertisements or postings; or (iii) responding to employment
inquiries by the other Party’s employees so long as such inquiries did not
result from the Party’s solicitation.


 


Section 16.            MANAGEMENT AND CONTROL


 


16.1.        Project
Manager. Each Party shall appoint an individual who shall serve as the
primary representative of such Party under this Agreement (each a “Project
Manager”). Each Project Manager shall (a) have overall responsibility for
managing and coordinating the performance under this Agreement of the Party
that appointed him or her; (b) be authorized to act for and on behalf of
such Party under this Agreement with respect to the day to day operation of the
Services; and (c) be responsible for attempting to resolve disputes
concerning this Agreement in accordance with the dispute resolution procedures
set forth in Section 30. The Project Manager appointed by SAVVIS (the “SAVVIS
Project Manager”) shall serve as the single point of accountability for the
Services. SAVVIS’ appointment of the initial or any replacement SAVVIS Project
Manager shall be subject to Cowen’s prior written consent.


 


The initial Project Managers are identified on
Schedule L. While the Parties agree that the SAVVIS Project Manager will
not be fully dedicated to Cowen, the SAVVIS Project Manager shall as necessary,
devote substantially full time and full effort to the Services. SAVVIS shall
not replace or reassign the SAVVIS Project Manager for two (2) years from the
date such individual has been assigned to Cowen’s account unless Cowen has
requested such replacement or reassignment or the SAVVIS Project Manager:
(a) voluntarily resigns from SAVVIS, (b) is dismissed by SAVVIS for
misconduct (e.g., fraud, drug abuse, theft), (c) is promoted by SAVVIS;
(d) materially fails to perform his or her duties and responsibilities
pursuant to this Agreement, or (e) is unable to work due to his or her
disability. If Cowen decides, in its sole discretion, that the SAVVIS Project
Manager should not continue in his or her position, Cowen may request removal
of the SAVVIS Project Manager by giving SAVVIS notice of the request and SAVVIS
shall promptly remove the SAVVIS Project Manager and propose a replacement
Project Manager to Cowen for approval pursuant to the above. SAVVIS shall have
a plan in place in the event that its Project Manager is no longer available to
serve as such. Notwithstanding any provision to the contrary, any right of
SAVVIS to replace the SAVVIS Project Manager is subject to Cowen’s right to
pre-approve the replacement.


 


16.2.        Project
Manager Meetings. The SAVVIS Project Manager shall meet with the HP-Cowen
Steering Committee as needed but at least monthly. Such meetings shall include
discussions relating to the progress of the Transition and/or the Services to
be provided hereunder and the
resolution of any disputes. After the period ending three (3) months following
the Transition Completion Date, the SAVVIS Project Manager shall meet with
Cowen’s Project Manager at least once per calendar month or at such other
frequency as mutually agreed to by the Parties. SAVVIS shall produce and
distribute minutes for each such meeting.


 


16.3.        Other
Meetings. During the Term, representatives of the Parties shall meet
periodically or as reasonably requested by Cowen to discuss matters arising
under this Agreement. SAVVIS shall produce and distribute minutes for each such
meeting. Such meetings shall include, as needed, the following:


 


20

















 


(a)           a
periodic meeting at least monthly to review performance and monthly reports and
invoices, planned or anticipated activities and changes that might impact costs
and expenses, performance, and such other matters as deemed appropriate by
Cowen;


 


(b)           a
quarterly management meeting to review the monthly reports for the calendar
quarter, review SAVVIS’ overall performance under the Agreement, review
progress on the resolution of issues, provide a strategic outlook for Cowen’s
information systems requirements, and discuss such other matters as
appropriate;


 


(c)           an
annual meeting of senior management of both Parties to review relevant contract
and performance issues; and


 


(d)           such
other meetings of Cowen and SAVVIS Staff, including senior management of
SAVVIS, as Cowen or SAVVIS may reasonably request.


 


Section 17.            SUBCONTRACTORS


 


17.1.        Subcontractors.
Prior to subcontracting any Services, SAVVIS shall notify Cowen’s Project
Manager of the proposed subcontractor. Notwithstanding any other provision of
this Agreement, all potential subcontractors shall be required to execute the
Subcontractor Nondisclosure Agreement as set forth on Schedule M before
disclosure by SAVVIS of any of Cowen’s Confidential Information to such
subcontractors or SAVVIS entering into any discussions with such subcontractors
regarding this Agreement or the relationship between the Parties. Any
subcontracting shall not release SAVVIS from its responsibility for its
obligations under this Agreement. SAVVIS shall be responsible for the work and
activities of each of its subcontractors, including compliance with the terms of
this Agreement, and shall be and remain responsible for the performance of all
obligations under this Agreement that are required to be performed by any
subcontractor. SAVVIS shall be responsible for all, and Cowen shall have no
responsibility for any, payments required to be made to SAVVIS’ subcontractors.


 


Section 18.            SAVVIS STAFF


 


18.1.        SAVVIS
Staff. SAVVIS shall appoint and maintain sufficient staff (with
corresponding coverage for vacation and other outages) (the “SAVVIS Staff”) of
suitable training and skills to provide the Services in accordance with the
Service Levels. SAVVIS shall provide Cowen with a list of all SAVVIS employees
then-currently dedicated full time to performing the Services upon the
Transition Completion Date. SAVVIS shall not reduce the number of full time
equivalent personnel dedicated to performing the Services at any time prior to
the date which is ninety (90) days after the Transition Completion Date and
thereafter, only subject to the terms of the following two (2) sentences. As
soon as reasonably possible on or after the date which is ninety (90) days
after the Transition Completion Date, SAVVIS will provide Cowen with a report
detailing SAVVIS’ performance of the Services against the Service Levels as
specified in the SOW for the ninety (90) day period since the Transition
Completion Date. If SAVVIS has, for the period reflected in the report, met all
Services Levels, then SAVVIS may adjust the number of full-time personnel
dedicated to performing the Services; provided however that, if SAVVIS fails to
meet any Service Level in any subsequent month, then SAVVIS will, as soon as
reasonably possible after it becomes aware of such failure, re-evaluate the
reduction of resources and adjust those resources so that SAVVIS is again able
to meet the Service Levels.


 


21

















 


18.2.        Conduct
of Staff.


 


For purposes of this Section 18.2 only, all references
to SAVVIS Staff shall be deemed to include SAVVIS Agents.


 


(a)           While
at the other Party’s Service Locations or other premises, each Party’s Staff
shall: (i) comply with rules and regulations regarding personal and
professional conduct generally applicable to personnel at such sites from time
to time which the other Party provides to such Party in writing;
(ii) comply with reasonable requests of the other Party’s personnel
pertaining to personal and professional conduct; and (iii) otherwise
conduct themselves in a businesslike manner.


 


(b)           Each
Party’s Staff shall clearly identify themselves as such Party’s Staff and not
as employees of the other Party. This shall include any and all communications,
whether oral, written or electronic, to the extent reasonably necessary to so
identify themselves.


 


(c)           If
Cowen decides, in its sole discretion, that the SAVVIS Project Manager or any
SAVVIS Staff providing Services on Cowen premises should not continue in his or
her position, Cowen may request removal of that personnel by giving SAVVIS
notice of the request and, SAVVIS shall immediately  remove said personnel.
In such event, SAVVIS shall provide a replacement within
five (5) days of said notice (subject, in the case of the Project Manager, to
Section 16.1). SAVVIS shall also remove and provide a replacement for any other
SAVVIS personnel if the work product delivered by such SAVVIS personnel is
unsatisfactory to Cowen and is responsible for any failure to comply with
SAVVIS’ obligations under this Agreement.


 


(d)           SAVVIS
will provide and update during the Term and the Termination/Expiration
Assistance Period, a list of all SAVVIS Staff who have access or will have
access to Cowen Confidential Information or otherwise provide Services at the
Cowen Premises and SAVVIS shall ensure that all SAVVIS Staff that access Cowen
Confidential Information shall sign an agreement to comply with the Cowen
Trading Restrictions set forth in Schedule N, as may be amended by Cowen from
time to time upon thirty (30) days’ written notice to SAVVIS or shorter period
if required by law.


 


(e)           SAVVIS
shall cause SAVVIS Staff to comply with the obligations in items (a) and (b)
above and is responsible for any failure to comply.


 


18.3.        Turnover.
Cowen and SAVVIS agree that it is in their best interests to keep the turnover
rate of SAVVIS Staff to a reasonably low level. To the extent that the turnover
rate adversely affects (or as reasonably demonstrated by Cowen could adversely
affect) the provision of the Services, SAVVIS shall use reasonable efforts to
keep the turnover rate to a reasonably low level, and SAVVIS acknowledges and
agrees that notwithstanding transfer or turnover of SAVVIS Staff, SAVVIS
remains obligated to perform the Services in accordance with this Agreement.


 


Without limiting SAVVIS’ other obligations regarding
its provision of personnel to provide services for all Termination/Expiration
Assistance, SAVVIS will provide sufficient personnel with current knowledge of
the Services to work with the appropriate staff of Cowen and, if applicable,
Cowen’s designee(s), to provide the Termination/Expiration Assistance and related
information in a manner consistent with the Turnover Plan.


 


22

















 


Section 19.            CHANGE CONTROL PROCEDURES AND CHANGES TO THE SERVICES


 


19.1.        Change
Control. All material changes or additions in the Services, Deliverables or
other material aspects of SAVVIS’ performance of its obligations under this
Agreement (each, a “Change”, and collectively, Changes”) shall be made pursuant
to the change control procedures (“Change Control Procedures”) attached hereto
as Schedule O. No Change shall be implemented without Cowen’s prior written
approval except as (a) may be necessary on an emergency basis to maintain the
continuity of the Services or prevent anticipated imminent security related
events or (b) may be necessary for the general welfare of the SAVVIS
operational environment (changes to backbone, hosting network, etc.) without
adversely affecting the provision of Services to Cowen. SAVVIS shall (i)
schedule all non-emergency Changes so as not to unreasonably interrupt Cowen’s
business operations, (ii) prepare and deliver to Cowen a monthly rolling
schedule for ongoing and planned non-emergency Changes for the next 30-day
period, (iii) monitor the status of Changes against the applicable schedule,
and (iv) document and provide to Cowen notification of all Changes performed to
maintain the continuity of the Services or prevent anticipated imminent
security related events no later than the next business day after the Change
was made. In the case any Change is made, SAVVIS will give Cowen notice of such
Change as soon as possible if such Change is to the Cowen environment or
otherwise impacts Cowen.


 


Section 20.            SOFTWARE AND PROPRIETARY RIGHTS


 


20.1.        Cowen
Software.


 


(a)           Subject
to the terms and conditions of this Agreement, Cowen hereby grants to SAVVIS a
non-exclusive, non-transferable (except as
set forth in Section 37.1), non-sublicensable (except as set forth in
this Section 20.1), limited, revocable right to operate the Cowen Software set
forth on Schedule P and, to the extent permissible under any applicable
third party agreements, the Cowen Third Party Software, solely for the purpose
of providing and solely to the extent necessary to provide the Services to
Cowen hereunder. SAVVIS will, except as permitted by law, refrain from
taking any steps to modify, reverse assemble, reverse engineer, reverse compile
or otherwise derive a Source Code version of the Cowen Software and/or Cowen
Third Party Software for which rights are granted under this paragraph. The
Cowen Software and Cowen Third Party Software shall at all times remain the
sole and exclusive property of Cowen or its suppliers.


 


(b)           SAVVIS
may sublicense, to the extent permissible under the applicable third party
agreements (if any), to SAVVIS Agents the right to operate and use the Cowen
Software set forth on Schedule P, and the Cowen Third Party Software,
solely to the extent necessary to provide the Services that such SAVVIS Agents
are responsible for providing to Cowen in accordance with this Agreement.


 


20.2.        SAVVIS
Materials.


 


SAVVIS hereby grants to Cowen and its Affiliates and
their respective employees, officers, directors, agents and contractors, during
the Term and during the Termination/Expiration Assistance Period, the fully
paid, worldwide, irrevocable, nonexclusive, non-transferable (except as set forth in Section 37.1),
non-sublicensable (except as set forth in this Section 20.2) right and license
to access and use, the SAVVIS
Software and SAVVIS Tools set forth on Schedule Q, all in Object Code form
only (collectively, the “SAVVIS Materials”), solely for the purpose and to the
extent necessary for Cowen and its Affiliates to utilize the Services


 


23

















 


hereunder. Cowen will, except as permitted by
Law,  refrain from taking any steps to
modify, reverse assemble, reverse engineer, reverse compile or otherwise derive
a Source Code version of the SAVVIS Materials. The SAVVIS Materials shall at
all times remain the sole and exclusive property of SAVVIS or its suppliers.
Cowen may sublicense, to the extent permissible under the applicable third
party agreements (if any), to Cowen Agents the right to access and use the
SAVVIS Software and SAVVIS Tools set forth on Schedule Q, solely to the
extent necessary for such Cowen Agents to assist Cowen in receiving and using
the Services in accordance with this Agreement.


 


20.3.        Ownership
of Deliverables.


 


(a)           Deliverables,
and other materials provided by SAVVIS as part of the Services shall be, and at
all times thereafter remain, the sole and exclusive property and Confidential
Information of Cowen to the extent that such deliverable(s) or other materials
are created specifically for Cowen and are not otherwise part of SAVVIS’
standard service offerings, including the content of reports (“Cowen Materials”).
Cowen shall own all rights, title and interest of reports in such Cowen
Materials. All such Cowen Materials shall be deemed a “work made for hire” (as
such term is defined in 17 U.S.C. § 101) for Cowen. SAVVIS hereby irrevocably
assigns, transfers and conveys, and shall cause all SAVVIS Agents and SAVVIS
Staff to assign, transfer and convey to Cowen without further consideration all
of its or their right, title and interest in and to such Cowen Materials
including all rights of patent, copyright, trademark, trade secret or other
proprietary rights in such Cowen Materials and all rights to causes of action
and remedies related to any of the foregoing, effective immediately upon the
inception, conception, creation, development or reduction to practice thereof.
SAVVIS acknowledges that Cowen and the assigns of Cowen shall have the right to
obtain and hold in their own name any intellectual property rights in and to
such Cowen Materials. SAVVIS agrees to execute any documents or take any other
actions as may reasonably be necessary, or as Cowen may reasonably request, to
perfect Cowen’s ownership interest in or to such Cowen Materials, including
procuring and causing to be executed all such assignments and other instruments
and documents necessary to effectuate the foregoing.


 


(b)           SAVVIS
agrees not to challenge the validity of Cowen’s ownership of any Cowen
Materials.


 


(c)           To
the extent any SAVVIS Materials, other SAVVIS materials or intellectual
property, or any third party materials or intellectual property rights, are
deployed, incorporated, used or embedded in or with any such deliverables
and/or other materials, except as otherwise agreed by the Parties, SAVVIS
grants and shall be deemed to have granted to Cowen a fully paid, worldwide,
irrevocable, perpetual, nonexclusive right and license to use, execute,
reproduce, display, perform, transmit, distribute, modify, import, manufacture,
have made, sell, offer to sell, and otherwise exploit (including to create
derivative works based on), in any form including Object Code form and Source
Code form, any such materials, and to grant sublicenses through multiple tiers
to any third party to do any or all of the foregoing, for any and all purposes.


 


(d)           Notwithstanding
anything to the contrary, SAVVIS (or its licensor) will at all times retain and
have sole and exclusive title to and ownership of (i) any software,
methodologies, tools, specifications, techniques, documentation or data which
is utilized by SAVVIS in the performance of Services and has been originated or
developed by SAVVIS, its Affiliates or by third parties outside of the scope of
the Services, or which has been purchased by or licensed to SAVVIS and (ii) any
deliverables and other materials provided by SAVVIS as


 


24














 


part of the Services which were already
existing as of the Effective Date of this Agreement, were originated or
developed by SAVVIS, its Affiliates or by third parties outside of the scope of
the Services, or which has been purchased by or licensed to SAVVIS


 


20.4.        Residuals. Nothing in this
Section 20 shall prevent SAVVIS from using the Residuals in furtherance of its
business, provided that any such use shall be subject to SAVVIS’ compliance
with its obligations with respect to Cowen’s Confidential Information under
Section 28, Confidentiality. “Residuals” shall mean information in
non-tangible form, which may be retained by persons, in their unaided memory,
who have provided Services hereunder, constituting general ideas, concepts,
know-how or techniques relating to Cowen Materials. Notwithstanding any
provision in this Section 20.4, the term “Residuals” shall not include (i)
Confidential Information of Cowen, or (ii) any subject matter regarding Cowen
protectable by intellectual property rights.


 


Section
21.            DATA AND RETURN OF DATA


 


21.1.        Ownership of Cowen Data. As
between SAVVIS and Cowen, all Cowen Data is, will be, and shall remain the
property of Cowen and shall be deemed Confidential Information of Cowen. Cowen
Data shall not be (a) used by SAVVIS other than in connection with
providing the Services and then solely in accordance with the terms and
conditions of this Agreement (including without limitation the confidentiality
restrictions set forth in Section 28), (b) disclosed, sold, assigned,
leased or otherwise provided to third parties by SAVVIS or SAVVIS Agents or
(c) commercially exploited by or on behalf of SAVVIS or SAVVIS Agents.
Subject to the Limitations of Liability set forth in Section 34, SAVVIS bears
the full and complete risk and liability for all loss, theft, destruction,
alteration, or disclosure of any Cowen Data provided to SAVVIS, SAVVIS Staff
and/or SAVVIS Agents in connection with this Agreement to the extent not caused
by Cowen. SAVVIS shall (x) retain any marks placed by Cowen on such Cowen Data
that mark or otherwise identify Cowen Data as Cowen’s property, (y) store Cowen
Data separately (through physical separation or logical partition) from other
SAVVIS data or information and/or any data or information of any third party, and
(z) promptly remove Cowen Data from storage at Cowen’s request. SAVVIS
shall establish and maintain safeguards against the loss, theft, destruction,
alteration, or disclosure of Cowen Data in the possession or control of SAVVIS,
SAVVIS Staff and/or SAVVIS Agents, which safeguards are no less rigorous than
those maintained by SAVVIS for its own information of a similar nature, but in
no event shall SAVVIS use less  than commercially reasonable efforts to
safeguard such Cowen Data. Cowen shall have the right at Cowen’s cost to
establish backup security for Cowen Data and to keep all backups of Cowen Data
and Cowen Data files in its possession if it chooses.


 


21.2.        Copies of Data. Upon request by
Cowen no more than once every calendar quarter, SAVVIS shall, and shall cause
all SAVVIS’ Agents to, provide Cowen with copies of all Cowen Data then in
SAVVIS’ possession or under the control of SAVVIS in the format and on the
media reasonably requested by Cowen at
SAVVIS’ expense (including, without limitation, copies of back up,
archival or history logs therefor).


 


21.3.        Return of Data. As soon as
reasonably practicable upon expiration or termination of this Agreement and the
Termination Expiration Assistance Period, SAVVIS shall, and shall cause all
SAVVIS Staff and Agents to, (a) at SAVVIS’ expense, return to Cowen, in the
format and on the media requested by Cowen, all Cowen Data then in the
possession or under the control of SAVVIS, and (b) erase or destroy all copies
of Cowen Data then in the possession or under the control of SAVVIS or its
Agents (as applicable). Any media containing


 


25

















 


Cowen Data for archival or other purposes
shall be used by SAVVIS and SAVVIS Agents solely for back up purposes, and
shall be purged or destroyed, at Cowen’s option, upon request.


 


Section
22.            CONSENTS


 


22.1.        Cowen Consents. All Cowen
Consents shall be obtained by Cowen. Cowen shall pay any costs of obtaining the
Cowen Consents.


 


22.2.        SAVVIS Consents. All SAVVIS
Consents shall be obtained by SAVVIS. SAVVIS shall pay all costs of obtaining
the SAVVIS Consents.


 


Section
23.            DISASTER RECOVERY AND
BUSINESS CONTINUITY


 


23.1.        Disaster Recovery and Business
Continuity Plans. SAVVIS shall, as part of the Base Services, cooperate
with Cowen and HP in Cowen’s and HP’s development and implementation of a
disaster recovery plan (the “Disaster Recovery Plan”) and a business continuity
plan (the “Business Continuity Plan”), designed to assure that the HP/SAVVIS
solution continues to be provided seamlessly. Additionally, SAVVIS shall
provide the disaster recovery services set forth in the SOW. Without limiting
the foregoing, if a Force Majeure Event prevents performance of the Services
for more than thirty (30) days, Cowen may terminate this Agreement, in whole or
in part. In the event of, in response to, or in contemplation of any disaster
or Force Majeure Event, SAVVIS shall not increase any fees charged under this
Agreement. In all events, Cowen shall not be obligated to pay for Services which
SAVVIS Staff are unable to provide due to a disaster or Force Majeure Event
(including loss of, or inability to use facilities at, Cowen Service
Locations).


 


Section
24.            ALLOCATION OF RESOURCES


 


24.1.        Priority. Whenever a Force
Majeure Event or a disaster causes SAVVIS to allocate limited resources between
or among SAVVIS, and subject to SAVVIS’ obligations under applicable Law,
SAVVIS’ affiliates and customers, Cowen, and/or Cowen Affiliates at the
affected Service Locations, Cowen and its Affiliates shall receive priority in
respect of such allocation that is no less favorable with respect to such
allocation than any similarly situated customer of SAVVIS. In addition, under
such circumstances subject to SAVVIS’ obligations under applicable Law, at no
time shall the time of the SAVVIS Project Manager assigned to the Cowen account
be allocated to any other account in excess of the extent to which such time is
ordinarily allocated to other accounts, including without limitation during a
Force Majeure Event or a disaster, without Cowen’s prior written consent which
consent shall be in Cowen’s sole discretion.


 


Section
25.            FEES, PAYMENT AND INVOICES


 


25.1.        Fees. All fees to be payable and
which SAVVIS may charge under this Agreement (the “Fees”) for the Base Services
are set forth in Schedule C. Cowen shall not be required to pay SAVVIS any
amounts for the Services other than those set forth herein. No later than the
tenth (10th) day of each calendar month commencing with June 2005,
SAVVIS shall invoice Cowen for the Services performed in accordance with this
Agreement during such calendar month. Invoices shall be in the form set forth
on Schedule C. Any Fees which constitute charges by third parties to SAVVIS (if
any) which SAVVIS is permitted under this Agreement to pass through to Cowen
shall be passed through to Cowen without any mark-up or other additional charge
by SAVVIS except as set forth in Schedule C. In the event that any 


 


26

















 


professional or consulting Services are
performed by SAVVIS hereunder and such performance does not materially comply
with specifications set forth in this Agreement or the agreed-upon order for
such Services, SAVVIS shall repeat its performance of such Services in
accordance with the terms and conditions of this Agreement at no charge to
Cowen. Any and all payments to SAVVIS hereunder shall be made (at Cowen’s
election) via check, wire or ACH pursuant to SAVVIS’ instructions for the
applicable method of payment.


 


25.2.        Refunds and Credits for Non-Provision
of Services. In the event SAVVIS is unable to provide Services due to a
Force Majeure Event or a disaster, then in addition to other remedies available
to Cowen hereunder, Cowen shall not be required to pay SAVVIS for Services with
respect to the period such Services were not provided, and SAVVIS shall credit
to Cowen any amounts prepaid for such Services with respect to such period.


 


25.3.        Costs and Expenses. Except as
expressly set forth in this Agreement, any costs and expenses of SAVVIS
incurred in providing the Services are included in the Fees and shall not be
reimbursed by Cowen unless agreed to by Cowen in writing in advance, in its
discretion, on a case-by-case basis. Any such reimbursement shall be in
accordance with the Cowen Vendor Expense Policy set forth as Schedule S,
as may be amended by Cowen from time to time upon thirty (30) days’ written notice to SAVVIS.


 


25.4.        Rights of Set Off. With respect
to any amount which (a) should be reimbursed to a Party or (b) is
otherwise payable  to a Party pursuant to this Agreement, such Party may,
upon written notice to the other Party, deduct the entire amount owed to such
Party against the charges otherwise payable or expenses owed to the other Party
under this Agreement.


 


25.5.        Reimbursable Items. Without
limiting any other obligations (including payment obligations) of SAVVIS
hereunder, SAVVIS shall pay, or (if paid by Cowen) promptly reimburse Cowen at
Cowen’s request, for any third party SAVVIS fees, charges or costs relating to or
arising out of: (a) SAVVIS’ use of the Cowen Software or Cowen Service
Locations in violation of any of the terms herein or in a manner not
contemplated by this Agreement, or (b) SAVVIS contacting a third party to
provide support or maintenance to correct an error or problem with the Cowen
Software when such third party is not responsible for, or its product is not a
cause of, such error or problem.


 


25.6.        Unused Credits. Any unused
credits against future payments owed to either party by the other Party pursuant
to this Agreement shall be paid to the Party to whom such credits are or were
owed within thirty (30) days of the expiration or termination of this
Agreement.


 


25.7.        Proration. All periodic fees or
charges under this Agreement are to be computed on a calendar month basis and
shall be prorated on a daily basis for any partial month.


 


25.8.        Time of Payment. Any undisputed
sum due to SAVVIS pursuant to this Agreement shall be due and payable within
sixty (60) days after the date of Cowen’s receipt of the corresponding invoice
from SAVVIS. Past due amounts will accrue interest at the lesser of the rate of
one and one-half percent (11⁄2%) per month or the maximum rate allowed by
applicable law. Cowen shall be entitled to a one and one-half percent (11⁄2%) discount
on all amounts paid within ten (10) days of Cowen’s receipt of the invoice
therefor.


 


25.9.        Disputed Payment. Cowen may
withhold payment of any charges that Cowen reasonably disputes in good faith
provided that Cowen will notify SAVVIS of the amount of and


 


27

















 


basis for its dispute within thirty (30) days
after the date of the corresponding invoice from SAVVIS together with
reasonable documentation of such dispute. In the event that a given invoice includes
both disputed and undisputed charges, Cowen shall pay all undisputed items in
accordance with this Section 25 and Schedule C, and may withhold payment only
of the disputed charges in accordance with this Section. If Cowen has already
paid a disputed charge (i.e., if Cowen decides after paying a given charge to
dispute the charge), Cowen may off-set the disputed charge against other
charges owed by Cowen hereunder, subject to Section 25.4. Cowen shall notify
SAVVIS in writing on or before the date that any amount is so withheld (whether
in respect of dispute on a current invoice or as a set-off) and describe, in
reasonable detail, the reason for such withholding. Cowen and SAVVIS shall
diligently pursue an expedited resolution of such dispute in accordance with
the dispute resolution procedures set forth in Section 30.


 


Section
26.            TAXES


 


26.1.        Taxes. As of the Effective Date,
it is the understanding of the Parties that the Services provided as part of
the Base Case are not taxable under Article 28 of the New York Sales and Use
Tax law. Notwithstanding the foregoing, in the event that the taxing authority
levies a tax under such law, Cowen agrees to pay SAVVIS for all such taxes;
provided that SAVVIS shall reasonably cooperate with Cowen in any further investigation
or resolution efforts arising out of such claim or payment. The Parties’
respective responsibilities for taxes arising under or in connection with this
Agreement will be as follows:


 


(a)           Cowen shall be responsible for all
applicable taxes or other similar charges including, for avoidance of doubt,
any fees, contributions and/or assessments payable to or collected by the FCC
or any state public utilities commission or to a third party pursuant to any
requirement of the FCC or any state public utilities commission, imposed by any
governmental entity by virtue of the Services performed under this Agreement,
except for personal property taxes, franchise taxes, corporate excise or
corporate privilege, property or license taxes on assets owned by, or business
conducted by SAVVIS, any tax based on SAVVIS’ net income or gross revenues, or
other taxes levied on SAVVIS which are not required by law to be collected from
Cowen, which taxes shall be paid by SAVVIS.


 


(b)           SAVVIS will be responsible for any
personal property taxes on property it owns or leases, for franchise and
privilege taxes on its business, and for taxes based on its net income or gross
receipts.


 


(c)           SAVVIS will be responsible for any
sales, use, excise, value-added, services, consumption, and other taxes and
duties payable by SAVVIS on any goods or services, that are used or consumed by
SAVVIS in providing the Services where the tax is imposed on SAVVIS’
acquisition or use of such goods or services and the amount of tax is measured
by SAVVIS’ costs in acquiring such goods or services.


 


(d)           The Parties agree to cooperate with
each other to enable each to more accurately determine its own tax liability
and to minimize such liability to the extent legally permissible. Each Party will provide and make available
to the other any information regarding out-of-state or out-of-country sales or
use of equipment, materials or services, and other exemption certificates or
information reasonably requested by either Party.


 


(e)           Each Party will promptly notify the
other Party of, and coordinate with the other Party the response to and
settlement of, any claim for taxes asserted by applicable


 


28

















 


Governmental Authorities for which the other
Party may be responsible hereunder, it being understood that with respect to
any claim arising out of a form or return signed by a Party to this Agreement,
such Party will have the right to elect to control the response to and
settlement of the claim, but the other Party will have all rights to
participate in the responses and settlements that are appropriate to its
potential responsibilities or liabilities. If either Party requests the other
Party to challenge the imposition of any tax, and the other Party agrees in its
discretion to undertake that challenge, the requesting Party will reimburse the
other Party for the costs, legal fees and expenses incurred directly by the
other Party in providing such assistance. Each Party will be entitled to any
tax refunds or rebates granted to the extent such refunds or rebates are of
taxes that were paid or to be paid by such Party.


 


Section
27.            AUDITS


 


27.1.        Services Audit. Upon at least
thirty (30) days (or, in the case of an
audit pursuant to Governmental Authority order, such lesser time period as is
reasonably practicable under the circumstances) written notice from Cowen not to occur (except as required by Governmental
Authority) more than one
time per year, SAVVIS and SAVVIS Agents shall provide such auditors and
inspectors as Cowen or any Governmental Authority may, from time to time,
designate in writing with reasonable access (i) during normal business
days and hours (except, as may be necessary to perform security audits, at any
time upon proper identification and
authentication) to the SAVVIS Service Locations and the Software and
Equipment and (ii) any time to the Cowen Service Locations, in each case
for the purpose of performing audits or inspections of the Services and the
business of Cowen. SAVVIS shall provide, and shall cause all SAVVIS Agents to
provide, such auditors and inspectors any assistance that they may reasonably
require, including an exit conference with such auditors or inspectors. If any
audit by an auditor or inspector designated by Cowen or a Governmental Authority
establishes that SAVVIS is not in compliance with the Agreement, or any Law or
any audit requirement imposed by Law relating to the Services, and such
noncompliance has an adverse effect on the Services or Cowen, SAVVIS shall, and
shall cause SAVVIS Agents to, take actions to promptly comply with such Law or
audit requirement, as applicable. Cowen shall bear all costs and expenses of
such audits and SAVVIS shall bear the expense of any such corrective action
that is (x) required by Law relating to SAVVIS’ business, or
(y) necessary due to SAVVIS’ noncompliance with the Agreement, any Law or
any audit requirement imposed by Law relating to such Services, imposed on
SAVVIS.


 


27.2.        Fee Audit. Upon at least thirty
(30) days written notice from Cowen not to occur more than one time per year,
SAVVIS shall provide Cowen and Cowen’s Agents (including any third party
auditor(s) designated by Cowen), at Cowen’s expense, with access during normal
business days and hours to such books and records and documentation which
support charges billed to Cowen (which records and documentation shall be
maintained in accordance with Section 27.3) as may be reasonably requested by
Cowen that cover the period since the preceding audit, not to exceed a period
of up to eighteen (18) months preceding such audit (the “Review Period”), and
Cowen may audit the Fees charged to Cowen for such period to determine that
such Fees are accurate and in accordance with this Agreement. If such audit
establishes that SAVVIS has overcharged Cowen for the Review Period, Cowen
shall notify SAVVIS of the amount of such overcharge and SAVVIS shall apply as
a set off against amounts due from Cowen to SAVVIS the amount of the overcharge
plus interest at the rate of one percent (1%) per month, but in no event to
exceed the highest lawful rate of interest, calculated from the date of receipt
by SAVVIS of the overcharged amount until the date of payment to Cowen.


 


29

















 


27.3.        Record Retention. As part of the
Base Services, SAVVIS shall (a) retain records and supporting
documentation (which records and documentation shall be maintained on a
consistent basis and substantially in accordance with generally accepted
accounting principles) (i) sufficient to document the Services and the
Fees paid or payable by Cowen under this Agreement during the Term and for at
least seven (7) years following the expiration or termination of this
Agreement, (ii) as necessary for SAVVIS to be in compliance with the
SAVVIS Regulatory Requirements, and (b) upon at least three business days’
prior notice from Cowen, provide Cowen and Cowen’s agents with reasonable
access during normal business days and hours to such records and documentation.


 


27.4.        Facilities. SAVVIS shall provide
to Cowen and such of Cowen’s agents and auditors and inspectors as Cowen may
reasonably designate in writing, on SAVVIS’ premises (or if the audit is being
performed of a SAVVIS Agent, the SAVVIS Agent’s premises, if necessary),
workspace, office furnishings (including lockable cabinets), telephone and
facsimile service, network access, utilities and office related equipment and
duplicating services to the extent
(except for an audit performed by a Governmental Authority) that SAVVIS then has available and as
Cowen or such auditors and inspectors may reasonably require to perform the
audits described in this Section 27.


 


27.5.        SAS Audit. SAVVIS shall, at least
once annually, cause a SAS 70 Type II audit of the data center(s) from which
SAVVIS provides Services to be performed by a certified public accounting firm
or mutually agreeable alternative. SAVVIS shall be financially responsible for
the costs for such SAS 70 Type II audit. In the event such audit reveals that
SAVVIS’ controls or operations do not comply with SAS 70 Type II
requirements or otherwise do not satisfy generally accepted industry standards,
SAVVIS shall promptly remedy any material inadequacy at SAVVIS’ cost and
expense. Subject to the confidentiality restrictions in this Agreement, SAVVIS
agrees that Cowen may provide SAVVIS’ audit report to any regulatory agency
requesting such information and that SAVVIS shall cooperate in providing such
additional information requested by any regulatory agency.


 


Section
28.            CONFIDENTIALITY


 


28.1.        Confidential Information.


 


(a)           SAVVIS and Cowen each acknowledges
that it may be furnished by the other Party or the other Party’s Agent with, receive, or otherwise have access to
information of or concerning the other Party which such Party considers to be
confidential, proprietary, a trade secret or otherwise restricted. As used in
this Agreement, “Confidential Information” shall mean all information, in any
form, furnished or disclosed, directly or indirectly, by one Party to the other
Party, or to which the other Party otherwise
has access, which is marked confidential, restricted, proprietary, or
with a similar designation, or which a reasonably prudent business person would
deem to be confidential information considering the nature of the information
and the circumstances of its disclosure. The terms and conditions of this
Agreement shall be deemed Confidential Information of both Parties. Without
limiting the foregoing, Confidential Information of a Party also shall be
deemed to include (whether or not marked confidential, restricted, proprietary,
or with a similar designation): (i) all specifications, designs, software,
technical documentation and other technical data, furnished or disclosed,
directly or indirectly, by one Party to the other Party, or to which the other
Party otherwise has access; (ii) all non-public information concerning the
operations, affairs and businesses of the Party and any of the Party, its
Affiliates, the financial affairs of the party and any of its Affiliates, and
the relations of the Party and any of its Affiliates with their customers,
employees, agents and service providers;


 


30

















 


(iii) and with respect to Cowen,
(A) all Cowen Software and Cowen Data and (B) all other information or
data, to the extent it relates to and is directly identifiable to Cowen, stored
on magnetic media or otherwise or communicated orally or otherwise, and
obtained, received, transmitted, processed, stored, archived, or maintained by
SAVVIS, SAVVIS Staff or SAVVIS Agents under this Agreement; and (iv) with
respect to SAVVIS, all SAVVIS Software and SAVVIS Data.


 


(b)           Notwithstanding anything to the
contrary in this Agreement, including without limitation the exclusions from
Confidential Information set forth in Section 28.3 hereof, Confidential
Information includes “NPI”. “NPI” has the meaning ascribed to “nonpublic
Personal Information” in Title V of the Gramm-Leach-Bliley Act of 1999 or any
successor federal statute, and the rules and regulations thereunder, as all may
be amended and supplemented from time to time (“GLBA”). SAVVIS shall, and shall
cause its Staff and Agents to: (i) implement and maintain an appropriate
security program for NPI to (A) take reasonable commercial steps to ensure
the security and confidentiality of NPI, (B) take reasonable commercial
steps to protect against any threats or hazards to the security or integrity of
NPI; and (C) take reasonable commercial steps to prevent unauthorized
access to or use of NPI, and (ii) otherwise keep NPI confidential in
accordance with the terms of this Agreement and any applicable law, rule or
regulation of any jurisdiction relating to disclosure or use of GLBA personal
information. SAVVIS shall promptly notify Cowen (i) of any disclosure or
use of any NPI by the SAVVIS, its Staff or its Agents in breach of this
Agreement, and (ii) of any disclosure of any NPI to SAVVIS, its Staff or
its Agents where the purpose of such disclosure is not known to SAVVIS. Cowen
reserves the right to review the SAVVIS’ policies and procedures used to
maintain the security and confidentiality of NPI. At Cowen’s direction and in
its sole discretion at any time, SAVVIS shall immediately return to Cowen any
or all NPI. Upon termination or expiration of this Agreement, SAVVIS shall
immediately return to Cowen any and all NPI which it has received under this
Agreement and shall destroy records of such NPI.


 


28.2.        Obligations.


 


(a)           Each Party’s Confidential Information
shall remain the property of that Party, except as expressly provided otherwise
by the other provisions of this Agreement. Cowen and SAVVIS shall each use at
least the same degree of care, but in any event no less than a reasonable
degree of care, to prevent disclosing to third parties the Confidential
Information of the other Party, as such Party employs to avoid unauthorized
disclosure, publication or dissemination of its own information of a similar
nature and similar importance; provided that (i) Cowen may disclose such
information to entities performing services for Cowen and/or Cowen Affiliates
who require access to the Confidential Information in the provision of Services
to Cowen and/or Cowen Affiliates where (A) such disclosure is necessary to the
performance of such Services and (B) the entity to which the information is
disclosed either (1) if any Affiliate of Cowen, is bound by obligations of
the same scope and at least as stringent as those described in this Section 28
or (2) if an entity other than an Affiliate of Cowen, agrees in writing to
assume obligations of the same scope and at least as stringent as those
described in this Section 28; and (ii) SAVVIS may disclose such
information to SAVVIS Agents performing Services where (A) use of such
entity is authorized under this Agreement, (B) such disclosure is
necessary to the performance of such services, and (C) the entity to which
the information is disclosed agrees in writing to assume obligations of the
same scope and at least as stringent as those described in this Section 28.
With respect to any disclosure by Cowen or SAVVIS as described herein to such
entity, the disclosing Party assumes full responsibility for any breach of its
confidentiality obligations caused by any such entity to which the Confidential
Information is disclosed by such Party.


 


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(b)           Notwithstanding the foregoing
subsection (a) or any other provision of this Agreement, neither Party
shall release the other Party’s Confidential Information to any third party
(other than its Agents as permitted pursuant to subsection (a) above and its
Affiliates, subject to confidentiality obligations under this Section 28)
without the express prior written consent of the other Party. Neither Party
shall utilize or disclose the other Party’s Confidential Information for any
purpose other than that of rendering or receiving the Services under this
Agreement or as otherwise contemplated by this Agreement. Neither Party shall
possess or assert any ownership interest, lien or other right or interest
against or to the other Party’s Confidential Information. Each Party shall
ensure that none of the other Party’s Confidential Information, or any part
thereof, shall be sold, rented, assigned, leased, or otherwise disposed of to
third parties (except as expressly permitted above) by the first Party, or
commercially exploited by or on behalf of the first Party, the first Party’s
Staff or the first Party’s Agents.


 


(c)           As requested by either Party during
the Term, or upon expiration or any termination of this Agreement (in whole or
in part) and/or completion of SAVVIS’ obligations under this Agreement, the
other Party shall return or destroy, as the first Party may direct, all
material (including all copies and parts thereof) in any medium that contains,
refers to, or relates to the first Party’s Confidential Information, and shall
certify any such destruction in writing to the first Party; provided that (i) SAVVIS will not request that Cowen return Confidential
Information during the Termination/Expiration
Assistance Period to the extent such return would prevent Cowen from receiving
Termination/Expiration Assistance pursuant to Section 33 and (ii) each Party will be excused from its obligations under this Agreement to
the extent caused by such return of the other Party’s Confidential Information
to the requesting Party and/or erasure or destruction of the other Party’s
Confidential Information, as requested by the requesting Party.


 


(d)           Each Party shall ensure that such
Party’s Staff and Agents comply with the requirements of Section 28.2(c).


 


28.3.        Exclusions. “Confidential
Information” shall not include any particular information which SAVVIS or Cowen
can demonstrate and document (a) was, at the time of disclosure to it, in
the public domain through no fault of the receiving Party and without any
breach by the receiving Party of any obligation of confidentiality to the
furnishing Party; (b) after disclosure to it, is published or otherwise
becomes part of the public domain through no fault of the receiving Party and
without any breach by the receiving
Party of any obligation of
confidentiality to the furnishing Party; (c) was rightfully in the
possession of the receiving Party at the time of disclosure to it without any
obligation to restrict its further use or disclosure; (d) was received
after disclosure to it from a third party who had a lawful right to disclose
such information to it without any obligation to restrict its further use or
disclosure and without any breach by such third party of any obligation of
confidentiality to the Party furnishing the information hereunder; or
(e) was independently developed by the receiving Party without reference
to Confidential Information of the furnishing Party. In addition, a Party shall
not be considered to have breached its obligations by disclosing Confidential
Information of the other Party as required to satisfy any legal requirement of
a Governmental Authority provided that, upon receiving any such request and to
the extent that it may do so without violating any Law, such Party advises the
other Party of such request immediately and prior to making such disclosure in
order that the other Party may interpose an objection to such disclosure, take
action to assure confidential handling of the Confidential Information, or take
such other action as it deems appropriate to protect the Confidential
Information; and further provided that the first Party shall cooperate with
such Party in the foregoing.


 


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28.4.        Loss of Confidential Information.
In the event of any disclosure or loss of, or inability to account for, any
Confidential Information of the furnishing Party, upon becoming aware of such
event the receiving Party shall promptly, at its own expense:  (a) notify the furnishing Party in writing;
(b) take such actions as may be necessary or reasonably requested by the
furnishing Party, and otherwise cooperate with the furnishing Party, to
minimize the adverse effects to the furnishing Party of such event and any
damage resulting from such event.


 


28.5.        Injunctive Relief. Each Party
acknowledges that the other Party’s Confidential Information is unique property
of extreme value to the other Party, and the unauthorized use or disclosure
thereof would cause the other Party irreparable harm that could not be
compensated by monetary damages. Accordingly, each Party agrees that the other
will be entitled to seek, from any court of competent jurisdiction, injunctive
and preliminary relief to remedy any actual or threatened unauthorized use or
disclosure of the other Party’s Confidential Information.


 


Section
29.            COVENANTS


 


29.1.        By SAVVIS.


 


(a)           Work Standards. SAVVIS will
render the Services with promptness, efficiency and diligence and in a
workmanlike manner, consistent with applicable industry standards, and all
SAVVIS Staff shall have suitable training, education experience and skill in
order to properly perform the Services.


 


(b)           Maintenance. SAVVIS will
maintain the SAVVIS Software and SAVVIS Equipment as specified in the
manufacturer’s specifications and documentation for such Software and
Equipment, including to the extent set forth in such specifications and
documentation (i) maintaining the SAVVIS Software and the SAVVIS Equipment in
good operating condition, (ii) promptly undertaking repairs and preventive
maintenance on the SAVVIS Equipment, including, at a minimum, in accordance
with applicable manufacturer’s recommendations, and (iii) performing reasonable
maintenance with respect to the SAVVIS Software, including, at a minimum, in
accordance with applicable documentation and Third Party Software vendor’s
recommendations.


 


(c)           Non-Infringement. SAVVIS
represents and warrants that to the best of its knowledge as of the Effective
Date, the Services to be performed under this Agreement do not infringe, or
constitute an infringement or misappropriation of, any patent, copyright,
trademark, trade secret, license or other intellectual property or other
proprietary rights of any third party and no actions are pending, and no
material actions are threatened (which would not be curable pursuant to Section
35.2) which claim any such infringement.


 


(d)           No Open Source. SAVVIS
represents and warrants that SAVVIS has taken all appropriate steps to ensure
that SAVVIS, SAVVIS Staff and SAVVIS Agents will not use, and will prevent the
introduction of, any open source software in SAVVIS Equipment or SAVVIS
Software dedicated solely to the provision of the Services to Cowen which open
source software would, as a result of such use of open source software as part
of the Services with software provided by Cowen or as a result of Cowen’s
distribution of such Cowen-provided software following such use, cause Cowen to
become subject to an obligation to (i) publicly disclose or distribute such
software in source code form or (ii) make such Cowen-provided software
available under any license agreement without Cowen’s prior written consent.


 


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(e)           Compliance With Laws and
Regulations. SAVVIS will perform its obligations in a manner that complies
with applicable Laws, including identifying and procuring required permits,
certificates, approvals and inspections. If a charge of non-compliance with
such Laws occurs, SAVVIS will promptly notify Cowen of such charge in writing.


 


(f)            Viruses. SAVVIS will use
commercially reasonably efforts to ensure that no Viruses are coded or
introduced into the systems used by SAVVIS to provide the Services, or other
materials prepared by or on behalf of SAVVIS in the performance of the Services
hereunder. SAVVIS agrees that, in the event a Virus is found to have been
introduced by SAVVIS or SAVVIS Agents into the systems used to provide the
Services, or into Cowen’s systems or is found in any such materials prepared by
or on behalf of SAVVIS, SAVVIS shall, at no additional charge to Cowen, assist
Cowen in reducing the effects of the Virus and, if the Virus causes a loss of
operational efficiency or loss of data, to assist Cowen to the same extent to
mitigate and restore such losses.


 


(g)           Disabling Code. Without the
prior written consent of Cowen, SAVVIS will not intentionally insert into any
Software any code which would have the effect of disabling or otherwise
shutting down all or any portion of the Services (“Disabling Code”). With
respect to any Disabling Code that may be part of the Software used to provide
the Services, SAVVIS will not invoke such Disabling Code at any time without
Cowen’s prior written consent.


 


(j)            Date-Related Functionality.
SAVVIS represents and warrants that, with respect to all date-related data and
functions, the Services, and the hardware and software being used by SAVVIS
hereunder to provide the Services, will accept input, perform processes, and
provide output in a manner that (i) is consistent with its intended use and all
applicable specifications, (ii) prevents ambiguous or erroneous results, and
(iii) does not result in any adverse effect on functionality or performance of
the Services or such hardware or software.


 


29.2.        Mutual Representations and Warranties.


 


(a)           Authorization. Each Party
represents and warrants that:


 


(i)            it has the requisite power and
authority to enter into this Agreement and to carry out the transactions and
perform its obligations as contemplated by this Agreement;


 


(ii)           there are no pending claims for which
service has been made against it that might have a material adverse effect on
its ability to meet its obligations under this Agreement; and


 


(iii)          the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by the requisite
action on the part of such Party.


 


(b)           No Violation. Each Party
represents and warrants that its execution, delivery, and performance of this
Agreement will not constitute (i) a violation of any judgment, order, or
decree; (ii) a material default under any material contract by which it or any
of its material assets are bound; or (iii) an event that would, with notice or
lapse of time, or both, constitute such a default as described in foregoing
subsection (ii).


 


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Section
30.            DISPUTE RESOLUTION


 


30.1.        Dispute Resolution Procedure.
SAVVIS and Cowen agree that with respect to any dispute or controversy arising
out of or in connection with this Agreement or the performance of Services
hereunder, the Parties shall first attempt to resolve their disputes in the
manner described in this Section 30.


 


30.2.        Escalation of Dispute.


 


(a)           Project Managers. All disputes
arising under or relating to this Agreement shall be referred to the Project
Managers. If the Project Managers are unable to resolve the dispute within five
(5) business days after referral of the matter to them, the Parties shall
submit the dispute to SAVVIS’ Regional Sales Vice President and Cowen’s CIO.


 


(b)           Escalation. In the event the
persons specified in (a) are unable to resolve a dispute within ten (10)
business days of the date of the meeting during which such dispute was
considered, the Parties shall submit the dispute to the senior management of
each party for resolution. In the event senior management of the Parties is
unable to resolve the dispute within five (5) business days of the date such
dispute was submitted to senior management for consideration, then either Party
may submit the dispute to a court of competent jurisdiction.


 


30.3.        Injunctive Relief.
Notwithstanding anything else herein to the contrary, either Party may, without
following the dispute resolution procedures in this Section 30, seek immediate
injunctive relief for any breach or impending breach of this Agreement by the
other party for which a temporary restraining order or other injunctive relief
is an appropriate remedy, including, without limitation, any breach of a
Party’s confidentiality obligations hereunder.


 


30.4.        Continuity of Base Services. In
the event of a dispute between Cowen and SAVVIS, Cowen and SAVVIS shall
continue to perform their obligations under this Agreement in good faith during
the resolution of such dispute, as if such dispute had not arisen, unless and
until this Agreement is terminated in accordance with the provisions hereof.


 


30.5.        Additional Dispute Resolution Terms.


 


(a)           SAVVIS and Cowen agree that written
or oral statements or offers of settlement made in the course of the dispute
resolution process set forth in this Section will (i) be Confidential
Information, (ii) will not be offered into evidence, disclosed, or used
for any purpose in any formal proceeding, and (iii) will not constitute an
admission or waiver of rights.


 


(b)           SAVVIS and Cowen will promptly return
to the other, upon request, any such written statements or offers of
settlement, including all copies thereof.


 


Section
31.            TERMINATION BY COWEN


 


31.1.        Termination for Cause.


 


(a)           In the event that:


 


(i)            SAVVIS commits a breach of this
Agreement that materially impacts Cowen’s business or otherwise constitutes a
material breach of this Agreement, which 


 


35

















 


breach is not cured within thirty (30) days
from the date SAVVIS receives written notice of such material breach or such
longer period as mutually agreed by the Parties in writing; or


 


(ii)           SAVVIS commits a breach of this
Agreement that materially impacts Cowen’s business or otherwise constitutes a
material breach which, in either case, is not capable of being cured within
thirty (30) days from the date that SAVVIS receives written notice of such
breach;


 


then Cowen
may, by giving written notice to SAVVIS, immediately terminate this Agreement,
in whole or in affected part, as of a date specified in the notice of
termination. With respect to any termination pursuant to this Section 31.1, in
addition to and without limitation of SAVVIS’ obligations (including efforts to
cure any breach), SAVVIS acknowledges and agrees that it has an affirmative
obligation to use commercially reasonable efforts to mitigate damages which may
be incurred by Cowen.


 


31.2.        Termination for Convenience. Cowen
may terminate this Agreement for convenience upon one hundred and eighty (180)
days notice to SAVVIS, provided that in such event Cowen will pay to SAVVIS a
Termination Fee as set forth in Schedule C.


 


31.3.        Termination for Change in Control of
SAVVIS. In the event (a) of a change in Control of SAVVIS where such
Control is acquired, directly or indirectly, in a single transaction or series
of related transactions by (i) a competitor of Cowen in the financial services
industry, (ii) an entity that, is not reasonably capable of performing Services
and SAVVIS’ other obligations as set forth in this Agreement, or (iii) an
entity that has been involved in litigation or a substantial dispute with Cowen
within the preceding twenty-four (24) months, (b) that all or substantially all
of the assets of SAVVIS are acquired by any entity described in (a)(i), (ii) or
(iii), or (c) that SAVVIS is merged with or into another entity described in
(a)(i), (ii) or (iii) to form a new entity, then at any time within twelve (12)
months after the last to occur of such events, Cowen may terminate this
Agreement in its sole discretion, by giving SAVVIS at least ninety (90) days
prior written notice and designating a date upon which such termination will be
effective.


 


31.4.        Termination for Violation of Laws.
If SAVVIS or any of its Affiliates, officers or controlling owners shall become
the subject of any investigation by any governmental authority for violation of
any law or regulation which has or is likely to cause harm to the reputation or
goodwill of Cowen in the marketplace, whether or not related to Services to be
performed under this Agreement, Cowen may terminate this Agreement, in whole or
in part, by giving SAVVIS at least thirty (30) days prior written notice,
unless such investigation is discontinued or otherwise mitigated so as not to
cause harm to the reputation or goodwill of Cowen in the marketplace within
such thirty (30) day period.


 


31.5.        Termination for Material Adverse
Change. Cowen shall have the right to terminate this Agreement, in whole or
in part, upon thirty (30) days written notice, in the event there has been a
Material Adverse Change in the financial condition of SAVVIS which affects the
ability of SAVVIS to perform the Services. For this purpose, a “Material
Adverse Change” will be deemed to occur if and only if, at the end of any two (2)
consecutive quarters beginning with or after the fourth (4th) quarter of 2005,
SAVVIS (i) does not have positive EBITDA; and (ii) either SAVVIS does not have
positive operating cash flow or SAVVIS does not have cash balances above
Twenty-Five Million Dollars ($25,000,000) (all as defined according to
generally accepted accounting principles and/or reported in SAVVIS’ Form 10Q or
Form 10K); except that a Material Adverse Change will not be deemed to have
occurred in the event the circumstance


 


36

















 


set forth in (i) or (ii) is the result of an
extraordinary circumstance such as a merger or acquisition. In the event of
such termination, Cowen will pay a Termination Fee equal to the applicable
CapEx amount as calculated pursuant to Schedule C.


 


31.6.        Termination for Bankruptcy. If:
(a) SAVVIS files any voluntary petition in bankruptcy, (b) SAVVIS has an
involuntary petition in bankruptcy filed against it which is not challenged in
twenty (20) days and dismissed within sixty (60) days, (c) SAVVIS avails itself
of or becomes subject to any petition or proceeding under any statute of any
state or country relating to insolvency, liquidation or the protection of
rights of creditors, or any other insolvency, liquidation, bankruptcy or
similar proceeding for the settlement of debt, (d) SAVVIS makes a general
assignment for the benefit of creditors, (e) SAVVIS becomes insolvent on either
a balance sheet or equitable insolvency basis, (f) SAVVIS admits in writing its
inability to pay debts as they mature, (g) SAVVIS has a receiver appointed for
substantially all of its assets, (h) SAVVIS ceases conducting business in the
normal course, or (i) SAVVIS has a material portion of its assets attached,
then Cowen shall have the right to terminate this Agreement as of the date
specified in the notice of termination.


 


31.7.        Termination for Force Majeure. In
the event (a) a material portion of the Services or the performance of the
Services is delayed or interrupted because of a Force Majeure condition as
described in Section 37.4 for more than thirty (30) days and SAVVIS cannot
provide a temporary alternative reasonably acceptable to Cowen, or (b) SAVVIS
fails to implement disaster recovery procedures as specified in the SOW after a
Force Majeure Event or disaster within the time frame set forth in the SOW,  then
Cowen may, at its discretion (i) terminate the affected portion of the Services
without liability and at Cowen’s option, seek an alternative, or (ii) contract
with a third party for substitute services and suspend SAVVIS’ performance of
such portion of the Services for the duration of such contract. In either case,
Cowen will have no further obligation to pay any Fees for Services not provided
as a result of such Force Majeure condition.


 


31.8.        Termination for SLA Failures.
Without limiting Cowen’s other termination rights, Cowen may additionally
terminate this Agreement pursuant to Section 8.2.3.5 of the SOW.


 


31.9.        Remedies. For avoidance of doubt,
either Party’s termination of this Agreement shall be without prejudice to any
other right or remedy that the terminating Party may have hereunder, or at law
or equity, and shall not relieve the other Party of breaches occurring prior to
the effective date of such termination.


 


31.10.      Adjustment. In the event of any
partial termination by Cowen, as provided in this Agreement, the charges
payable under this Agreement for Services will be adjusted in accordance with
Schedule C (or if Schedule C does not provide a reasonable basis for such adjustment,
an equitable adjustment as mutually agreed upon)  to reflect those
Services that are not terminated.


 


Section
32.            TERMINATION BY SAVVIS


 


32.1.        Termination for Failure to Pay.
In the event of a failure by Cowen to make timely payment of any material fees
or charges due and payable under this Agreement (and not subject to good faith
dispute by Cowen pursuant to Section 25.9), which breach is not cured within
thirty (30) days of receipt of written notice thereof; SAVVIS shall, upon the end of such thirty
(30) day cure period, have the right to terminate this Agreement by providing
Cowen with a second written notice of such breach and SAVVIS’ intent to
terminate (the “Second Notice”)


 


37

















 


Cowen in which case, the Agreement will
terminate ten (10) days after Cowen’s receipt of such Second Notice unless the
breach is cured prior to the end of such ten (10) day period. Notwithstanding
the foregoing, upon Cowen’s receipt of a Second Notice from SAVVIS, Cowen may,
no more than two (2) times during the Term and not more than one time in any
calendar year (and not in the first contract year), extend the ten (10) day
cure period running from the Second Notice by thirty (30) days by providing
SAVVIS with written notice of such extension before the end of the original ten
(10) day cure period, in which case the Agreement will not terminate ten (10)
days after Cowen’s receipt of the Second Notice, but will terminate at the end
of the extended cure period unless the breach is cured prior to the end of the
extended cure period.


 


32.2.        No Other Grounds for Termination.
Due to the impact any termination of this Agreement would have on Cowen’s
business, Cowen’s failure to perform its responsibilities set forth in this
Agreement (other than as provided in paragraph 32.1) shall not be deemed to be
grounds for termination by SAVVIS. SAVVIS ACKNOWLEDGES THAT COWEN WOULD NOT BE
WILLING TO ENTER INTO THIS AGREEMENT WITHOUT ASSURANCE THAT IT MAY NOT BE
TERMINATED BY SAVVIS AND THAT SAVVIS MAY NOT SUSPEND PERFORMANCE EXCEPT, AND
ONLY TO THE EXTENT, SAVVIS TERMINATES PURSUANT TO THIS SECTION 32 OR IS
OTHERWISE PERMITTED TO SUSPEND PURSUANT TO SECTION 4.11.


 


32.3.        Termination for Bankruptcy. If:
(a) Cowen files any voluntary petition in bankruptcy, (b) Cowen has an
involuntary petition in bankruptcy filed against it which is not challenged in
twenty (20) days and dismissed within sixty (60) days, (c) Cowen avails itself
of or becomes subject to any petition or proceeding under any statute of any
state or country relating to insolvency, liquidation or the protection of
rights of creditors, or any other insolvency, liquidation, bankruptcy or
similar proceeding for the settlement of debt, (d) Cowen makes a general
assignment for the benefit of creditors, (e) Cowen becomes insolvent on either
a balance sheet or equitable insolvency basis, (f) Cowen admits in writing its
inability to pay debts as they mature, (g) Cowen has a receiver appointed for
substantially all of its assets, (h) Cowen ceases conducting business in the
normal course, or (i) Cowen has a material portion of its assets attached, then
SAVVIS shall have the right to terminate this Agreement as of the date
specified in the notice of termination.


 


Section
33.            TERMINATION/EXPIRATION
ASSISTANCE


 


33.1.        Termination/Expiration Assistance.
At Cowen’s request, commencing six (6) months prior to expiration of this
Agreement, or on such earlier date as Cowen may request, or commencing upon any
notice of termination by either Party (which notice, for purposes of Section
32.1, shall be the Second Notice from SAVVIS) (in whole or in part) or of
non-renewal of this Agreement (including notice based upon default by Cowen),
and continuing through the Termination/Expiration Assistance Period, SAVVIS
will provide to Cowen, or at Cowen’s request to Cowen or Cowen’s designee(s),
the termination/expiration assistance requested by Cowen and generally
available from SAVVIS to allow the Services to continue without interruption or
adverse effect and to facilitate the orderly transfer of the Services to Cowen
or its designee(s) (such assistance, “Termination/Expiration Assistance”);
provided that Cowen has paid all outstanding, undisputed amounts owing to
SAVVIS and prepays for the Termination/Expiration Assistance monthly in
advance. Any Termination/Expiration Assistance that is provided in accordance
with the foregoing will be provided during the Term at no additional cost to
the extent it is part of the Base Services and at SAVVIS’ time and materials
charges in Schedule C, unless agreed otherwise by the Parties to the extent it
is not part of the Base Services. The 


 


38

















 


charges for Termination/Expiration Assistance
provided by SAVVIS after termination or expiration of this Agreement, shall be
billed to Cowen at the rates set forth in Schedule C (except as the Parties may
otherwise agree). The quality and level of the Services shall not be degraded
during the Termination/Expiration Assistance Period, and all such
Termination/Expiration Assistance shall be provided in accordance with the
terms and conditions governing SAVVIS’ provision of the Services hereunder.
Termination/Expiration Assistance will include the following:


 


(a)           Within thirty (30) days after the commencement
of Termination/Expiration Assistance, SAVVIS will provide a plan for
operational turnover that is intended to enable a smooth transition of the
functions performed by SAVVIS under this Agreement to Cowen or its designee(s)
(such plan, the “Turnover Plan”). The Turnover Plan will be provided to Cowen
in both hardcopy and in an electronic format as reasonably requested by Cowen,
and shall be deemed Cowen’s Confidential Information. Upon Cowen’s approval of
the Turnover Plan, SAVVIS will provide all further Termination/Expiration
Assistance in accordance with such Turnover Plan and the terms and conditions
set forth therein. Provision of Termination/Expiration Assistance will not be
complete until that all tasks set forth in the Turnover Plan have been
completed.


 


(b)           SAVVIS will attend periodic review
meetings called by Cowen at reasonable times and frequency, during which the
Parties at a minimum will review SAVVIS’ performance of Termination/Expiration
Assistance, including the completion and delivery of tasks set forth in the
Turnover Plan.


 


(c)           The Turnover Plan will provide a
written description of all Services performed by SAVVIS.


 


(d)           SAVVIS will obtain any necessary
rights and thereafter make available to Cowen or its designee during the Termination/Expiration
Assistance Period, pursuant to reasonable terms and conditions (or terms and
conditions reasonably comparable to those pursuant to which SAVVIS has obtained
such rights for its own use in performing the Services), any Third Party Services
then being utilized by SAVVIS in the performance of the Services including
services being provided through third party service or maintenance contracts.


 


(e)           Upon the latter of the expiration or
termination of this Agreement and the last day of the Termination/Expiration
Assistance Period, (i) the rights granted to SAVVIS in Section 20.1 shall
immediately terminate and SAVVIS shall (A) deliver to Cowen, at no cost to
Cowen, a current copy of all of the Cowen Software in the form in use as of
that time and (B) destroy or erase all other copies of the Cowen Software in
SAVVIS’ care, custody or control, and cause all SAVVIS Agents to destroy or
erase all copies of the Cowen Software in their respective care, custody or
control and (ii) the rights granted to Cowen in Section 20.12 shall
immediately terminate and Cowen shall (A) deliver to SAVVIS, at no cost to
SAVVIS, a current copy of all of the SAVVIS Software in the form in use as of
that time and (B) destroy or erase all other copies of the SAVVIS Software in
Cowen’s care, custody or control except as necessary to resolve any remaining
dispute hereunder, and cause all Cowen Agents to destroy or erase all copies of
the SAVVIS Software in their respective care, custody or control.


 


(f)            Upon the latter of the expiration or
termination of this Agreement and the last day of the Termination/Expiration
Period, at Cowen’s request, with respect to any third party contracts entered
into for the exclusive purpose of providing the Services to Cowen for
telecommunications, connectivity, maintenance, disaster recovery, or other
necessary third 


 


39

















 


party services being used by SAVVIS to
perform the Services as of that time, SAVVIS shall, to the extent permitted by
the third party contracts, transfer or assign such contracts to Cowen or its
designee(s), on terms and conditions acceptable to all applicable Parties;
provided, that SAVVIS shall be
released from any and all liability under such contracts for events which occur
after the date of transfer. Cowen shall be responsible for the payment of any
transfer fee or non-recurring charge imposed by the applicable third party
service providers.


 


(g)           SAVVIS will allow Cowen and/or Cowen
Agents to use, at no additional charge, those SAVVIS Service Locations being
used to perform the Services during the Termination/Expiration Assistance
Period to enable Cowen to effect an orderly transition.


 


(h)           SAVVIS will provide Cowen with all
non-proprietary documentation, policies, and procedures in its possession and
control used by SAVVIS to provide the Services to the extent that Cowen has
rights to use such items as set forth in this Agreement and SAVVIS has rights
to transfer such items.


 


(i)            Within forty-five (45) days after
the latter of the expiration or termination of this Agreement and the last day
of the Termination/Expiration Period, SAVVIS shall de-install and remove all
SAVVIS Equipment located at Cowen Service Locations, subject to
Section 5.5.


 


(j)            Upon Cowen’s request, SAVVIS shall transfer
to Cowen or its designee, any or all of the Equipment, then being used by
SAVVIS to provide the Services, free and clear of all liens, security interests
or other encumbrances upon payment by Cowen of the CapEx amount calculated as
set forth in Schedule C.


 


Section
34.            LIMITATION OF LIABILITY


 


34.1.        NO CONSEQUENTIAL DAMAGES. IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY HEREUNDER FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.


 


34.2.        DIRECT DAMAGES. IN NO EVENT SHALL
EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR
RELATING TO THIS AGREEMENT EXCEED THE
AMOUNT ACTUALLY PAID BY COWEN TO SAVVIS FOR THE SERVICES UNDER THIS AGREEMENT
DURING THE TWENTY-FOUR (24) MONTHS PRIOR TO THE FIRST EVENT WHICH IS THE
SUBJECT OF THE FIRST CLAIM OR CAUSE OF ACTION HEREUNDER; PROVIDED THAT WHERE
LESS THAN TWENTY-FOUR (24) MONTHS OF THE TERM HAVE ELAPSED AT THE TIME OF THE
FIRST EVENT WHICH IS THE SUBJECT OF THE FIRST CLAIM OR CAUSE OF ACTION
HEREUNDER, EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF
OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE MONTHLY AVERAGE OF FEES FOR
ALL MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH ACTION OR CLAIM MULTIPLIED BY
TWENTY-FOUR (24).


 


34.3.        EXCLUSIONS. THE LIMITATIONS SET
FORTH IN SECTIONS 34.1 AND 34.2 SHALL NOT APPLY TO:  (A) DAMAGES OCCASIONED BY A BREACH OF A
PARTY’S CONFIDENTIALITY OBLIGATIONS; (B) DAMAGES OCCASIONED BY A PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT; (C) FINES, PENALTIES AND SIMILAR FINANCIAL
OBLIGATIONS LEVIED TO THE EXTENT CAUSED BY A PARTY’S FAILURE TO COMPLY WITH
APPLICABLE LAWS (AS DEFINED HEREIN); (D) DAMAGES OCCASIONED


 


40

















 


BY COMPLETE ABANDONMENT OF THIS AGREEMENT BY
SAVVIS; (E) COWEN’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT;OR (F) EITHER
PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; PROVIDED, HOWEVER,
THAT (i) THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES UNDER SECTIONS 35.1(c)
AND 35.3(c) SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 34.1
ABOVE; AND (ii) THE LIABILITY OF THE PARTIES WITH RESPECT TO THEIR
INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 35.1(e) AND 35.3(d), RESPECTIVELY,
SHALL NOT EXCEED WITH RESPECT TO ANY EVENT OR SERIES OF RELATED EVENTS THE
AMOUNT ACTUALLY PAID BY COWEN TO SAVVIS FOR THE SERVICES UNDER THIS AGREEMENT
DURING THE TWENTY-FOUR (24) MONTHS PRIOR TO THE FIRST EVENT WHICH IS THE
SUBJECT OF THE FIRST CLAIM OR CAUSE OF ACTION HEREUNDER; PROVIDED FURTHER THAT
WHERE LESS THAN TWENTY-FOUR (24) MONTHS OF THE TERM HAVE ELAPSED AT THE TIME OF
THE FIRST EVENT WHICH IS THE SUBJECT OF THE FIRST CLAIM OR CAUSE OF ACTION
HEREUNDER, EITHER PARTY’S LIABILITY WITH RESPECT TO ITS INDEMNIFICATION
OBLIGATIONS UNDER SECTIONS 35.1(e) AND 35.3(d), RESPECTIVELY, SHALL NOT EXCEED
THE MONTHLY AVERAGE OF FEES FOR ALL MONTHS PRIOR TO THE ACCRUAL OF THE FIRST
SUCH ACTION OR CLAIM MULTIPLIED BY TWENTY-FOUR (24). FOR AVOIDANCE OF DOUBT,
SERVICE CREDITS PURSUANT TO THE SOW WILL COUNT AGAINST, AND WILL REDUCE THE
AMOUNTS AVAILABLE UNDER, THE LIABILITY AMOUNTS SET FORTH IN SECTION 34.2 ABOVE.


 


34.4.        WARRANTY DISCLAIMER. EXCEPT FOR
WARRANTIES EXPRESSLY PROVIDED HEREIN, SAVVIS MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND CONCERNING THE SERVICE(S), SOFTWARE OR EQUIPMENT OR
ANY RESULTS TO BE ACHIEVED THROUGH USE OF THE SERVICE(S), SOFTWARE OR
EQUIPMENT. EXCEPT FOR WARRANTIES EXPRESSLY PROVIDED HEREIN, EACH PARTY DISCLAIMS
ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.


 


34.5.        Limitation of Liability. The
parties acknowledge that the limitations referenced in this Section 34 are
material terms to this Agreement. Cowen acknowledges that SAVVIS has set its
prices, and other charges in reliance on the foregoing limitations of
liability, which form an essential basis of the bargain between the parties.


 


Section
35.            INDEMNIFICATION


 


35.1.        Indemnity by SAVVIS. SAVVIS
agrees to indemnify, defend and hold harmless Cowen and its Affiliates, and
their respective officers, directors, employees, agents, successors, and
assigns, from any and all Losses and threatened Losses arising from, in
connection with, or based on allegations of, any of the following:


 


(a)           Any claims that (i) the Services
(which for avoidance of doubt includes deliverables provided by SAVVIS as part
of the Services), SAVVIS Materials, SAVVIS Software or use thereof by Cowen or
Affiliates, or (ii) performance of the Services by SAVVIS or SAVVIS Agents, or
Cowen’s or Cowen’s Affiliates’ use thereof as authorized under this Agreement,
infringes any patent, trade secret, trademark, copyright, license or other
proprietary rights provided that, in either case, such indemnity obligation
does not extend to the extent such claim or suit would not have occurred but
for (x) Cowen or Cowen Agent modifications not recommended or approved by
SAVVIS in writing, (y) combinations of Services and Equipment provided by
SAVVIS with services and equipment provided by Cowen or others where such


 


41

















 


combinations are not recommended or approved
by SAVVIS in writing, or (z) SAVVIS’ compliance with detailed specifications
provided by Cowen or Cowen Agents;


 


(b)           The death or bodily injury of any
agent, employee, Cowen business invitee, or business visitor or other person
caused by the conduct of SAVVIS or SAVVIS Agents;


 


(c)           The damage, loss or destruction of
any real or tangible personal property caused by the conduct of SAVVIS or its
employees or SAVVIS Agents;


 


(d)           any claim or action by SAVVIS’
subcontractors arising out of SAVVIS’ breach or violation of SAVVIS’
subcontracting arrangements; or


 


(e)           a suspension by SAVVIS of Services
pursuant to Section 4.11 but not compliant with Section 4.11.


 


35.2.        Infringement by SAVVIS. If any
SAVVIS-Material or SAVVIS Software used by SAVVIS to provide the Services
becomes, or is likely to become, the subject of an infringement or
misappropriation claim or proceeding, SAVVIS will, in addition to indemnifying
Cowen as provided in this Section 35 and to the other rights or remedies Cowen
may have available to it under this Agreement, promptly at SAVVIS’ expense take
the following actions at no additional charge to Cowen:


 


(a)           secure the right for Cowen and
Affiliates to continue using the item, Service, or material,


 


(b)           if the remedy provided for in
foregoing subsection (a) is not available to SAVVIS in the exercise of
commercially reasonable efforts, replace or modify the item, Service, or
material, to make it non-infringing, provided that any such replacement or
modification will not degrade the performance or quality of the item, Service,
or materials or SAVVIS’ performance under this Agreement, or


 


(c)           if the remedies provided for in
foregoing subsection (a) or (b) are not available to SAVVIS, cease providing
the affected Service to Cowen, provided that in such event Cowen may terminate
this Agreement, provided, however, for avoidance of doubt, that SAVVIS shall
have no cure right prior to such termination.


 


35.3.        Indemnity by Cowen. Cowen agrees
to indemnify, defend and hold harmless SAVVIS and its Affiliates and their
respective officers, directors, employees, agents, successors, and assigns,
from any and all Losses and threatened Losses arising from, in connection with,
or based on allegations of, any of the following:


 


(a)           Claims that (i) the Cowen Software or
use thereof by SAVVIS as authorized under this Agreement, (ii) any Cowen or
Cowen Agent modification of SAVVIS Materials or SAVVIS-owned Software not
recommended or approved by SAVVIS, (iii) any combination of Services and
Equipment provided by SAVVIS with services and equipment provided by Cowen or
others where such combinations are not recommended or approved by SAVVIS in
writing, or (iv) SAVVIS’ compliance with detailed specifications provided by
Cowen or Cowen Agents infringes any patent, trade secret, trademark, copyright,
license or other proprietary rights provided
that, in any such case, such indemnity obligation does not extend to the extent
such claim or suit would not have occurred but for (x) SAVVIS or SAVVIS Agent
modifications of the Cowen Software not recommended or approved by Cowen in
writing,


 


42

















 


(y) combinations of Cowen Software with
services and equipment provided by SAVVIS or others where such combinations are
not recommended or approved by Cowen in writing, or (z) Cowen’s compliance with
instructions or specifications provided by SAVVIS or SAVVIS Agents;


 


(b)           The death or bodily injury of any
agent, employee, SAVVIS business invitee, or business visitor or other person
caused by the conduct of Cowen or Cowen Agents; or


 


(c)           The damage, loss or destruction of
any real or tangible personal property caused by the conduct of Cowen or its
employees or Cowen Agents; or


 


(d)           any breach by Cowen, or third parties
to whom Cowen provides access to the Services, of Section 4.11.


 


35.4.        Infringement by Cowen. If the Cowen
Software becomes, or is likely to become, the subject of an infringement or
misappropriation claim or proceeding, Cowen will, in addition to indemnifying
SAVVIS as provided in this Section 35 and to the other rights or remedies
SAVVIS may have available to it under this Agreement, promptly at Cowen’s
expense take the following actions at no charge to SAVVIS:


 


(a)           secure the right for SAVVIS to
continue using the Cowen Software,


 


(b)           if the remedy provided for in
foregoing subsection (a) is not available to Cowen in the exercise of
commercially reasonable efforts, replace or modify the Cowen Software to make
it non-infringing, provided that any such replacement or modification will not
degrade the performance or quality of the Cowen Software; or


 


(c)           if the remedies provided for in
foregoing subsection (a) or (b) are not available to Cowen, cease providing the
affected Cowen Software to SAVVIS, provided that in such event SAVVIS shall be
relieved of its obligations with respect to any failure or delay in performance
of the Services or other consequences to the extent that such failure or delay
or other consequences arise from the fact that Cowen is no longer providing
such affected Cowen Software to SAVVIS; and provided further that Cowen may
terminate the affected Services.


 


35.5.        Indemnification Procedures. With
respect to third-party claims, the following procedures shall apply:  Promptly after receipt by any entity entitled
to indemnification under this Section of notice of the commencement or
threatened commencement of any civil, criminal, administrative, or
investigative action or proceeding involving a claim in respect of which a
Party will seek indemnification pursuant to this Section, the indemnified Party
shall notify the indemnifying Party of such claim in writing. No failure to so
notify the indemnifying Party shall relieve it of its obligations under this
Agreement except to the extent that it can demonstrate that it was materially
prejudiced by such failure. The indemnifying Party shall be entitled to have
sole control over the defense and settlement of such claim; provided that (i)
the indemnified Party shall be entitled to participate in the defense of such
claim and to employ counsel at its own expense to assist in the handling of
such claim, and (ii) the indemnifying Party shall obtain the prior written
approval of the indemnified Party before entering into any settlement of such
claim or ceasing to defend against such claim.


 


43

















 


Section
36.            INSURANCE


 


36.1.        SAVVIS Insurance Coverage. SAVVIS
shall during the Term and at its expense have and maintain in force at least
the following insurance coverages:


 


(a)           Employer’s Liability Insurance,
including coverage for injury, illness and disease, with minimum limits per
employee and per event of $1,000,000 and a minimum aggregate limit of
$1,000,000 or the minimum limits required by law, whichever limits are greater.


 


(b)           Worker’s Compensation Insurance,
including coverage for injury, illness and disease, in accordance with the laws
of the country, state or territory exercising jurisdiction over the employee.


 


(c)           Comprehensive General Liability
Insurance, including Products, Completed Operations, Premises Operations and
Personal Injury, Contractual and Broad Form Property Damage liability
coverages, on an occurrence basis, with a minimum limit per occurrence of at
least $5,000,000 and a minimum aggregate limit of $10,000,000. These limits may
be met by a combination of primary and umbrella policies. This coverage shall
be endorsed to name Cowen as additional insured.


 


(d)           Property Insurance for all risks of
physical loss of or damage to buildings, business personal property or other
property that is in the possession, care, custody or control of SAVVIS pursuant
to this Agreement, with a minimum limit adequate to cover risks on a
replacement costs basis. Such insurance shall include Business Income coverage
for SAVVIS hosting revenues.


 


(e)           Automobile Liability Insurance
covering use of all owned, non-owned and hired automobiles for bodily injury
and property damage with a minimum combined single limit per accident of at
least $5,000,000 and at least $10,000,000 on an aggregate basis. These limits
may be met by a combination of primary and umbrella policies. This coverage
shall be endorsed to name Cowen as additional insured.


 


(f)            Commercial Crime Insurance,
including blanket coverage for Employee Dishonesty and Computer Fraud, for loss
or damage arising out of or in connection with any fraudulent or dishonest acts
committed by the employees of SAVVIS, acting alone or in collusion with others,
with a minimum limit per event of $1,000,000.


 


(g)           Errors and Omissions Liability
Insurance covering liability for loss due to an act, error, omission or
negligence, or due to machine malfunction, with a minimum limit per event of
$2,000,000 with an aggregate limit of $2,000,000.


 


(h)           Umbrella Liability Insurance with a
minimum limit of $25,000,000 in excess of the insurance coverage described in
Sections 36.1(a), 36.1(c), and 36.1(e).


 


36.2.        Insurance Terms.


 


(a)           The Comprehensive General Liability
Insurance, Automobile Liability Insurance, and Umbrella Liability Insurance
coverages under Sections 36.1(c), 36.1(e) and 36.1(h) shall be primary, except
with respect to Section 36.1(c) for work performed at Cowen Service Locations,
and all coverage shall be non-contributing (as applicable) with respect to any 


 


44

















 


other insurance or self insurance which may
be maintained by Cowen. To the extent any coverage is written on a claims-made
basis, it shall allow for reporting of claims until the later of one (1) year
after the Term or the expiration of the period of the applicable limitations of
actions.


 


(b)           SAVVIS shall cause its insurers to
issue certificates of insurance evidencing that the coverages and policy
endorsements required under this Agreement are maintained in force and that not
less than thirty (30) days’ written notice shall be given to Cowen prior to
cancellation or non-renewal of the policies. The insurers selected by SAVVIS
shall be of good standing and authorized to conduct business in the
jurisdictions in which Services are to be performed. When the policy is issued
each such insurer shall have at least an A.M. Best rating of A- and replacement
coverage shall be sought if the insurer’s rating goes below B+. SAVVIS shall
assure that its subcontractors, if any, maintain:


 


i.              such insurance provided in Section
36.1(a), with minimum limits of $1,000,000;


 


ii.             such insurance provided in Section
36.1(b);


 


iii.            such insurance provided in Section
36.1(c), with minimum limits of $1,000,000, which coverage shall be endorsed to
name SAVVIS as additional insured; and


 


iv.            such insurance provided in Section
36.1(e), with minimum limits of $250,000 per person and $500,000 per
occurrence, which coverage shall be endorsed to name SAVVIS as additional
insured.


 


(c)           In the case of loss or damage or
other event that requires notice or other action under the terms of any
insurance coverage specified in this Section 36, SAVVIS shall be solely
responsible to take such action. SAVVIS shall provide Cowen with
contemporaneous notice and with such other information as Cowen may request
regarding the event. Moreover, Cowen shall provide to SAVVIS reasonable
assistance and cooperation with respect to any insurance claim.


 


(d)           SAVVIS’ obligation to maintain
insurance coverage shall be in addition to, and not in substitution for,
SAVVIS’ other obligations hereunder and SAVVIS’ liability to Cowen shall not be
limited to the amount of coverage required hereunder.


 


36.3.        Cowen Insurance Coverage. Cowen
shall keep in full force and effect during the term of this Agreement: (i)
commercial general liability insurance in an amount not less than $1 million
per occurrence with a $2 million aggregate covering claims for bodily injury,
death, personal injury or property damage, (ii) workers’ compensation insurance
in an amount not less than that required by applicable state law including
Employer’s Liability insurance with policy limits of not less than $500,000
each accident and (iii) an “all risk” property insurance policy covering all of
Cowen’s and Cowen Agents’ personal property located in the SAVVIS Service
Locations or Co-location Cages in an amount not less than its full replacement
value (subject to a commercially reasonable deductible). The liability
insurance limits required herein may be obtained through any combination of
primary and excess or umbrella liability insurance. Prior to installation of
any Cowen or Cowen Agent Equipment in the Co-location Cages, Cowen will deliver
to SAVVIS certificates of insurance which evidence the minimum levels of
insurance set forth above providing not less than thirty (30) days prior
written notice of cancellation or non-renewal of any herein required policy.


 


45

















 


Section
37.            MISCELLANEOUS PROVISIONS


 


37.1.        Assignment. This Agreement may
not be assigned by either Party without the prior written consent of the other
Party, and any such attempted assignment shall be deemed null and void.
Notwithstanding the foregoing, either Party shall have the right without such
consent to assign this Agreement, or any portion hereof, upon notice to the
other Party (i) to an Affiliate reasonably capable of performing the assigning
Party’s obligations under this Agreement or (ii) pursuant to any merger,
consolidation or sale of all or substantially all of the assets of the
assigning Party. This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the successors and permitted assigns of the Parties.


 


37.2.        Notice. All notices, requests,
claims, demands, and other communications (collectively, “Notice”) under this
Agreement shall be in writing and shall be given or made by delivery in person,
by courier service, or by certified mail (postage prepaid, return receipt
requested) to the respective Party at the following address set forth below or
at such other address as such Party may hereafter notify the other Party in accordance
with this Section 37.2. Each such Notice will be effective when actually
received at the respective addresses specified below:


 


If to SAVVIS,
for general notices:


 


SAVVIS
Communications Corporation

12851 Worldgate Drive

Herndon, VA  20170

Attn: Legal Department


 


If to SAVVIS,
for upgrades or termination notices:


 


SAVVIS
Communication Corporation

1 SAVVIS Parkway

Town & Country, MO  63017

Attn:  Vice President of Billing


 


in both
instances, with a copy to:


 


SAVVIS
Communications Corporation

12851 Worldgate Drive

Herndon, VA  20170

Attn:  Client Solutions


 


If to Cowen:


 


Cowen &
Co., LLC

1221 Avenue of the Americas

New York, NY  10020

Attn: Chief Information Officer


 


46

















 


with a copy
to:


 


Cowen &
Co., LLC

1221 Avenue of the Americas

New York, NY  10020

Attn:       Deputy General Counsel, 8th
Floor


 


37.3.        Counterparts. This Agreement may
be executed in any number of counterparts, all of which taken together shall
constitute one single agreement between the Parties.


 


37.4.        Force Majeure.


 


(a)           So long as such Party has taken
reasonable precautions to prevent such failure, a Party will not be responsible
for any failure to perform due to causes beyond its reasonable control (each a
“Force Majeure Event”) including acts of God, war, riot, embargoes, acts of
civil or military authorities, fire, floods, earthquakes, or lightning;
provided however, that such Party gives prompt written notice thereof to the
other Party. The time for performance will be extended for a period equal to
the duration of the Force Majeure Event, subject to Cowen’s rights in Section
31.7, but in no event shall any such extension extend the Term or any Renewal
Term then in effect.


 


(b)           Notwithstanding subsection (a)
above, no delay or other failure to perform shall be excused pursuant to this
Section 37.4 by the acts or omissions of the Agents, subcontractors,
materialmen, or suppliers of the Party seeking to be excused, or other third
parties providing products or services to any of the foregoing, unless such
acts or omissions are themselves the product of a Force Majeure Event and such
Force Majeure Event was not caused by the act or omissions of the Party seeking
to be excused.


 


(c)           Nothing contained in this Section
37.4 shall limit the right of either Party to make any claim against third
parties for any damages caused by a Force Majeure Event.


 


37.5.        Relationship. The Parties intend
to create an independent contractor relationship and nothing contained in this
Agreement shall be construed to make either Cowen or SAVVIS partners, joint
venturers, principals, agents or employees of the other. No officer, director,
employee, agent, affiliate or contractor retained by either Party to perform
work under this Agreement shall be deemed to be an employee, agent or
contractor of the other Party. Neither Party shall have any right, power or
authority, express or implied, to assume or create any obligation of any kind,
or to make any representation or warranty, on behalf of the other Party or to
bind the other Party in any respect whatsoever.


 


37.6.        Severability. If any provision of
this Agreement is held by a court of competent jurisdiction to be contrary to
law, then the remaining provisions of this Agreement, if capable of substantial
performance, shall remain in full force and effect.


 


37.7.        Waiver Remedies. No delay or
omission by either Party to exercise any right it has under this Agreement
shall impair or be construed as a waiver of such right. A waiver by any Party
of any breach or covenant shall not be construed to be a waiver of any
succeeding breach or any other covenant. All waivers must be in writing and
signed by the Party waiving its rights.


 


47

















 


37.8.        Consents and Approvals. Except
where expressly provided as being in the discretion of a Party, where approval,
acceptance, consent or similar action by either Party is required under this
Agreement, such action shall not be unreasonably delayed, conditioned or
withheld. An approval or consent given by a Party under this Agreement shall
not relieve the other Party from responsibility for complying with the
requirements of this Agreement, nor shall it be construed as a waiver of any
rights under this Agreement, except as and to the extent otherwise expressly provided
in such approval or consent.


 


37.9.        No Publicity. Each party agrees
that it and its personnel will not, without the prior written consent of the
other in each instance, which may be withheld in such other party’s sole
discretion, use in advertising, publicity or otherwise the name of the other
party or any of the other party’s Affiliates, or any trade name, trademark,
trade device, service mark, symbol or any abbreviation, contraction or
simulation thereof owned by the other party or any of the other party’s
Affiliates. SAVVIS agrees that it and its personnel will not, without the prior
written consent of Cowen in each instance, which may be withheld in Cowen’s
sole discretion, represent, directly or indirectly, that any product or any
service provided by SAVVIS has been approved or endorsed by Cowen or any of the
Cowen Affiliates, or refer to the existence of this Agreement.


 


37.10.      Entire Agreement. This Agreement,
including all Schedules, appendices and exhibits attached hereto (hereby
incorporated by reference herein), represents the entire agreement between the
Parties with respect to its subject matter, and supersedes any prior or
contemporaneous representations, proposals, understandings, agreements, or
discussions, whether oral or written, between the Parties relative to such
subject matter.


 


37.11.      Amendments. No amendment to, or
change, waiver or discharge of, any provision of this Agreement shall be valid
unless in writing and signed by an authorized representative of both Parties.


 


37.12.      Headings. The headings of the
articles and sections used in this Agreement are included for reference only
and are not to be used in construing or interpreting this Agreement.


 


37.13.      Order of Precedence. In the event
of a conflict between the provisions of this Agreement and any Schedule(s),
appendix(ices) or exhibit(s) attached hereto, the provisions of this Agreement
shall control.


 


37.14.      Survival. The following Articles
and Sections shall survive termination or expiration of this Agreement for any
reason:  Sections 9, 13.6, 17, 20, 21,
25.6, 26, 27, 28, 30, 34, 35 and 37 hereof, and those sections which by their
terms continue in effect through the Termination/Expiration Assistance Period.


 


37.15.      Covenant of Further Assurances.
Cowen and SAVVIS covenant and agree that, subsequent to the execution and
delivery of this Agreement and, without any additional consideration, each of
Cowen and SAVVIS shall execute and deliver any further legal instruments and
perform any acts which are or may become necessary to effectuate the purposes
of this Agreement.


 


37.16.      Negotiated Terms. The Parties agree
that the terms and conditions of this Agreement are the result of negotiations
between the Parties and that this Agreement shall not be construed in favor of
or against any Party by reason of the extent to which any Party or its
professional advisors participated in the preparation of this Agreement.


 


48

















 


37.17.      Governing Law and Jurisdiction.
This Agreement shall be construed and enforced in accordance with the laws of
the State of New York, without giving effect to the principles of conflicts of
law. The Parties consent and agree that all suits, actions, and other legal
proceedings arising out of or relating to this Agreement shall be exclusively
maintained in either the federal or state courts located in New York County,
New York, and each Party irrevocably submits to the exclusive jurisdiction and
venue of any such court in any such suit, action or other legal proceeding.


 


37.18.      Exports. The Parties acknowledge
that subject to Cowen’s prior approval in accordance with this agreement,
certain Services to be provided under this Agreement may be subject to export
controls under the laws and regulations of the United States and other
countries to the extent such Services are provided from Service Locations
outside of the United States. SAVVIS will be responsible, as part of the
Services, for securing all permits, licenses, regulatory approvals and
authorizations, whether domestic or international, and including all applicable
import/export control approvals required for SAVVIS to provide the Services to
Cowen and will take all lawful steps necessary to maintain such permits during
the term of this Agreement. SAVVIS will have financial responsibility for, and
will pay, all fees and taxes associated with obtaining such export permits.
SAVVIS will pay for and be solely responsible for obtaining and maintaining
such visas as may be required for its employees to enter and remain in the
country in which Services are rendered in connection with this Agreement.


 


37.19.      United Nations Declaration. Societe
Generale Group has signed the United Nations Declaration for the Environment
and Sustainable Development on November 21, 2001, and has been included in the
four main Sustainable Development indices since their inception. Societe
Generale and its subsidiaries, including SG Cowen & Co., LLC, are required
to engage in business with suppliers who comply with the basic terms of this
Declaration. SAVVIS acknowledges and agrees that it (a) complies with all
material labor laws in effect in the United States, (b) complies with all
material environmental laws in effect in the United States, and (c) will
not engage in any business related to SAVVIS’ provision of the Services, with
entities who, to SAVVIS’ knowledge, do not comply with the provisions of this
Section.


 


37.20.      Third Party Beneficiaries. The
terms, representations, warranties and agreements of the parties set forth in
this Agreement are not intended for, nor shall they be for the benefit of or
enforceable by, any third party, including without limitation, HP; provided
that Cowen’s Affiliates (as defined in the first sentence of the definition of
“Affiliate” in Section 1) receiving benefits or Services under this Agreement
shall be considered intended third party beneficiaries for purposes of this
Agreement.


 


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IN WITNESS
WHEREOF, each Party has caused this Agreement to be signed and delivered by its
duly authorized representative.


 


	
  SAVVIS COMMUNICATIONS

  CORPORATION  

  	
   

  	
  SG COWEN & CO., LLC 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ J. Finlayson

  	
   

  	
  By: 

  	
   /s/ Jean Orlowski

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   J. Finlayson

  	
   

  	
  Name: 

  	
  Jean
  Orlowski

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   President
  & COO

  	
   

  	
  Title:

  	
  Chief
  Information Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SG COWEN & CO., LLC  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   /s/ Pascal Pinson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Pascal
  Pinson

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Administrative Officer 

  
								



 


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