Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank and shall be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-fact to the same extent as if such actions or omissions to act were by the Bank. (b) The Bank may, without the prior consent of any Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. 7.2 The Bank shall be entitled to conclusively rely upon Proper Instructions actually received by the Bank and reasonably believed by the Bank to be issued from a person duly authorized by the Portfolio and delivered. Each Trust agrees to promptly forward to the Bank written instructions confirming oral instructions. Each Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. 7.3 The Bank shall establish and maintain business continuity and disaster recovery plans and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan. The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics or pandemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation. Upon the occurrence of any such delay or failure, the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the Trusts, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the Trusts may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the Trusts if any instructions provided by the Trusts at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Trusts. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the Trusts shall retain all ownership rights in each particular Trust’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trust. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the Trusts to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the Trusts to request such purchase; (c) The legality of the declaration of any dividend by the Trusts, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 16 contracts

Sources: Transfer Agency and Service Agreement (Federated Hermes ETF Trust), Transfer Agency and Service Agreement (Federated Hermes ETF Trust), Transfer Agency and Service Agreement (Federated Hermes ETF Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank.. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the terms and conditions attached hereto as Appendix A. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts, but is not obligated to do so,~~ Trust for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the Trusts if any instructions provided by the Trusts at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the Trusts shall retain all ownership rights in each particular Trust’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trust. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 10 contracts

Sources: Transfer Agency and Service Agreement (ETFis Series Trust I), Transfer Agency and Service Agreement (ETFis Series Trust I), Transfer Agency and Service Agreement (ETFis Series Trust I)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld); provided, however, that the Bank shall remain liable to the Trust for the acts and ~~shall be liable for~~ omissions of any ~~loss or expense arising out of, or in connection with, the actions or omissions to act of such~~ agents or attorney-in-fact under this Section as it is for its own acts and omissions under this Agreement. The Bank shall provide a list of unaffiliated agents and attorneys-in-~~fact~~ fact, if any, retained by it to provide services to the ~~same extent as if such actions or omissions to act were by~~ Trust hereunder upon the ~~Bank~~reasonable written request of the Trust. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. 7.2 The Bank shall be entitled to conclusively rely in good faith upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system at all times satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts, but is not obligated to do so,~~ Trust for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own ~~choosing, but is not obligated to do so~~choosing at its own expense, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and ~~notifies~~ consults with the ~~Trusts of~~ Trust regarding its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 4 contracts

Sources: Transfer Agency and Service Agreement (Invesco Galaxy Solana ETF), Transfer Agency and Service Agreement (Invesco Galaxy Ethereum ETF), Transfer Agency and Service Agreement (Invesco Galaxy Ethereum ETF)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. The Bank shall be liable to any Fund, the Trust or the Sponsor for any loss or damage arising out of, or in connection with, the actions or omissions to act of any such Bank affiliate utilized hereunder to the same extent as the Bank would be liable hereunder if the Bank had taken or omitted such action itself. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust and Sponsor elect to transmit written instructions through an on-line communication system offered by the Bank, Trust’s and Sponsor’s use thereof shall be subject to the terms and conditions, the use thereof will be subject to any terms and conditions contained in a separate written agreement between the Trust or its affiliates and the Bank. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system at all times satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~In the event that a Trust reasonably believes that the occurrence of any such event~~ The Bank will ~~substantially prevent, hinder or delay performance~~ provide an executive summary of the ~~services contemplated~~ Disaster Recovery Plan and Back-Up System upon reasonable request of the Trust or its Sponsor. The Bank will endeavor to test the adequacy of its Disaster Recovery Plan and Back-Up System at least annually. Upon request by ~~this Agreement for more than five (5) consecutive business days~~the Trust or its Sponsor, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank ~~in good faith in connection with any such mitigation and the Bank shall~~ will provide the Trust ~~reasonable assistance in good faith in connection therewith; provided, further, that~~ or its Sponsor with a letter summarizing the ~~Bank shall resume providing,~~ most recent Disaster Recovery Plan and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service providerBack-Up System test results. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Sponsor, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Sponsor may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in good faith in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may at its own expense consult with legal counsel of its own choosing, but is not obligated to do so, and advise the ~~Trusts~~ Trust and Sponsor if any instructions provided by the ~~Trusts~~ Trust or Sponsor at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may ~~reply~~ rely upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust and Sponsor of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust or Sponsor. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such issuance, sale or transfer; (b) The legality of the purchase of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, on behalf of a Fund, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the ~~Shares~~Shares of a Fund. 7.9 In performing the services hereunder, the Bank shall comply with the applicable provisions of each Fund’s current Form S-1 registration statement, and effective amendments thereto. 7.10 The Bank will furnish to the Trust and its Sponsor, no more than once annually, its System and Organization Controls Reports (SOC 1) as well as such other reports and information relating to the Bank’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. 7.11 The Bank shall cooperate with the Trust’s and Sponsor’s independent public accountants and shall take reasonable actions to provide such information, as may be reasonably requested by the Trust from time to time, to such accountants for the expression of their opinion. 7.12 Nothing in this Agreement shall limit or restrict the Bank, any affiliate of the Bank or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph the Bank may not use the Funds’ or Sponsor’s proprietary information in providing such services to such other third parties. 7.13 During the term of the Agreement, the Bank will implement and maintain an information security program ("ISP") with written policies and procedures reasonably designed to protect the confidentiality and integrity of Trust’s confidential information provided to the Bank in accordance with the Agreement and when in the Bank’s possession or under the Bank’s control (“Customer Data”). The ISP will include administrative, technical and physical safeguards, appropriate to the type of Customer Data concerned, reasonably designed to: (i) maintain the integrity, confidentiality and availability of Customer Data; (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data; (iii) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to Customer or its clients, and (iv) provide for secure disposal of Customer Data.

Appears in 3 contracts

Sources: Transfer Agency and Service Agreement (Franklin XRP Trust), Transfer Agency and Service Agreement (Franklin Solana Trust), Transfer Agency and Service Agreement (Franklin Crypto Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, at its own expense and without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations ~~hereunder~~hereunder and Bank shall be liable and responsible to the Trust for any act or omission of any Bank affiliate in the manner, and to the same extent, as though such act or omission were that of Bank. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, the Trust’s use thereof shall be subject to the terms and conditions contained in a separate written agreement between the Trust or its affiliates and the Bank as applicable for such on-line communication systems. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~In the event that a Trust reasonably believes that the occurrence of any such event~~ The Bank will ~~substantially prevent, hinder or delay performance~~ provide an executive summary of the ~~services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially~~ Disaster Recovery Plan and Back-Up System upon reasonable ~~actions to mitigate the impact~~ request of ~~such services not being provided, including, but not limited to, at~~ the Trust~~’s expense, contracting with another service provider to provide such services during such period; provided, that~~ . The Bank will test the ~~Trust shall consult with the Bank in good faith in connection with any such mitigation~~ adequacy of its Disaster Recovery Plan and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service providerBack-Up System at least annually. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~the Participation~~ each Authorized Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and ~~the Participation~~ each Authorized Participant Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own ~~choosing~~choosing at its own expense, but is not obligated to do so, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust in writing of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares. 7.9 In performing the services hereunder, the Bank shall act in conformity with the applicable provisions of each Series’ current prospectus(es) and statement(s) of additional information, and effective amendments thereto. 7.10 The Bank shall cooperate with the Trust’s independent public accountants and shall take reasonable actions to provide such information, as may be reasonably requested by the Trust from time to time, to such accountants for the expression of their opinion.

Appears in 2 contracts

Sources: Transfer Agency and Service Agreement (Matthews International Funds), Transfer Agency and Service Agreement (Matthews International Funds)

Concerning the Bank. (a) ~~The~~ Bank may employ agents or attorneys-in-fact which are not affiliates of Bank with the ~~Bank~~ prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that Bank acts in good faith and with reasonable care in the ~~same extent as if~~ selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) ~~The~~ Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. ~~7.2 The~~ 8.2 Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by ~~the~~ Bank and reasonably believed by ~~the~~ Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ Trust agrees to ~~promptly~~ forward to ~~the~~ Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to Bank. ~~Each~~ Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by ~~the~~ Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by Bank. If Trust elects to transmit written instructions through an on-line communication system offered by Bank, Trust's use thereof shall be subject to the ~~Bank.~~terms and conditions attached hereto as Appendix A. ~~7.3 The~~ 8.3 Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system at all times satisfying the requirements of ~~its regulators~~ all applicable law, rules, and regulations and which is reasonable under the circumstances (the “"Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement"). Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan. The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; ~~interruption,~~ loss or malfunctions of ~~transportation~~utilities, ~~computer (hardware or software) or communication services;~~ labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure, the~~ failure Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. ~~7.4 The~~ 8.4 Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against ~~the~~ Bank in connection with this ~~Agreement,~~ Agreement except as set forth in this Agreement and the Participation Agreement. ~~7.5~~ 8.5 At any time the Bank may apply to an officer of the ~~Trusts, but is not obligated to do so,~~ Trust for written instructions with respect to any matter arising in connection with the Bank’s 's duties and obligations under this Agreement, and the ~~Bank, its agents, and subcontractors~~ Bank shall not be liable for any action taken or omitted to be taken by the Bank in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the Trusts if any instructions provided by the Trusts at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Trusts. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the Trusts shall retain all ownership rights in each particular Trust’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trust. 7.8 8.6 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 2 contracts

Sources: Transfer Agency and Service Agreement (Claymore Exchange-Traded Fund Trust), Transfer Agency and Service Agreement (Claymore Exchange-Traded Fund Trust 2)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. The Bank shall be liable to any Fund, the Trust or the Sponsor for any loss or damage arising out of, or in connection with, the actions or omissions to act of any such Bank affiliate utilized hereunder to the same extent as the Bank would be liable hereunder if the Bank had taken or omitted such action itself. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust and Sponsor elect to transmit written instructions through an on-line communication system offered by the Bank, Trust’s and Sponsor’s use thereof shall be subject to the terms and conditions, the use thereof will be subject to any terms and conditions contained in a separate written agreement between the Trust or its affiliates and the Bank. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system at all times satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~In the event that a Trust reasonably believes that the occurrence of any such event~~ The Bank will ~~substantially prevent, hinder or delay performance~~ provide an executive summary of the ~~services contemplated by this Agreement for more than five (5) consecutive business days,~~ Disaster Recovery Plan and Back-Up System upon reasonable request of the Trust ~~may take commercially reasonable actions~~ or its Sponsor. The Bank will endeavor to ~~mitigate~~ test the ~~impact~~ adequacy of ~~such services not being provided, including, but not limited to,~~ its Disaster Recovery Plan and Back-Up System at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9least annually. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider.Upon 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Sponsor, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Sponsor may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in good faith in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may at its own expense consult with legal counsel of its own choosing, but is not obligated to do so, and advise the ~~Trusts~~ Trust and Sponsor if any instructions provided by the ~~Trusts~~ Trust or Sponsor at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may ~~reply~~ rely upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust and Sponsor of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust or Sponsor. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such issuance, sale or transfer; (b) The legality of the purchase of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, on behalf of a Fund, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the ~~Shares~~Shares of a Fund. 7.9 In performing the services hereunder, the Bank shall comply with the applicable provisions of each Fund’s current Form S-1 registration statement, and effective amendments thereto. 7.10 The Bank will furnish to the Trust and its Sponsor, no more than once annually, its System and Organization Controls Reports (SOC 1) as well as such other reports and information relating to the Bank’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. 7.11 The Bank shall cooperate with the Trust’s and Sponsor’s independent public accountants and shall take reasonable actions to provide such information, as may be reasonably requested by the Trust from time to time, to such accountants for the expression of their opinion. 7.12 Nothing in this Agreement shall limit or restrict the Bank, any affiliate of the Bank or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph the Bank may not use the Funds’ or Sponsor’s proprietary information in providing such services to such other third parties. 7.13 During the term of the Agreement, the Bank will implement and maintain an information security program ("ISP") with written policies and procedures reasonably designed to protect the confidentiality and integrity of Trust’s confidential information provided to the Bank in accordance with the Agreement and when in the Bank’s possession or under the Bank’s control (“Customer Data”). The ISP will include administrative, technical and physical safeguards, appropriate to the type of Customer Data concerned, reasonably designed to: (i) maintain the integrity, confidentiality and availability of Customer Data; (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data; (iii) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to Customer or its clients, and (iv) provide for secure disposal of Customer Data.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Franklin Ethereum Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or reasonable expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder, and the Bank shall be liable for any loss or expense arising out of or in connection with the actions or omissions of such affiliates, to the same extent that the Bank would be liable under this Agreement. 7.2 The Bank shall be entitled to conclusively rely in good faith upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank from the Trust or on behalf of the Trust and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank.. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the terms and conditions attached hereto as Appendix A. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, willful misconduct or fraud, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, the Custody Agreement (the “Custody Agreement”) between the Bank and the Trust, the Fund Administration and Accounting Agreement (the “Administration Agreement”) between the Bank and the Trust, and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement, the Custody Agreement, the Administration Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts, but is not obligated to do so,~~ Trust for specific written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall ~~not~~ not, absent their negligence, willful misconduct or fraud, be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank ~~shall~~ shall, absent its negligence, willful misconduct or fraud, not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the Trusts if any instructions provided by the Trusts at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the Trusts shall retain all ownership rights in each particular Trust’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trust. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (IndexIQ Active ETF Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact~~ fact, provided that the Bank is not negligent in selecting, retaining or monitoring the activities of such third party, acts in good faith and with reasonable care in the selection, retention and monitoring of such agents or attorneys-in-fact. The Bank shall be as fully responsible to the ~~same extent~~ Trust for the acts and omissions of any subcontractor as ~~if such actions or~~ it is for its own acts and omissions ~~to act were by the Bank~~and obligations hereunder. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the applicable terms and conditions. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may ~~reply~~ rely upon and follow the written legal advice without liability hereunder provided it (i) otherwise acts in compliance with this Agreement and ~~notifies~~ (ii) provides advance written notification to the ~~Trusts of its determination~~Trust at least 10 business days prior to taking any action pursuant to such legal advice. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Bitcoin Investment Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations ~~hereunder~~hereunder and Bank shall be liable and responsible to the Trust for any act or omission of any Bank affiliate in the manner, and to the same extent, as though such act or omission were that of Bank. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized and delivered by the ~~Portfolio and delivered~~Trust or the Distributor. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank (such as NEXEN), Trust's use thereof shall be subject to the terms and conditions of the Electronic Access Servicing Agreement. ~~7.3~~ (a) The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “"Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan"). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In For the ~~event that a Trust reasonably believes that the occurrence~~ avoidance of ~~any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days~~doubt, the Trust ~~may take commercially reasonable actions to mitigate~~ shall not be responsible or liable for any failure or delay in the ~~impact~~ performance of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to ~~the Bank with respect to any services not actually provided during any event described in this Section 7.3~~obtain labor, ~~and~~ material, equipment or transportation. (b) The Bank shall conduct a test of significant components of its Disaster Recovery Plan not less frequently than annually, and upon reasonable request, discuss with senior management of the Trust ~~shall have no responsibility to pay~~ such Disaster Recovery Plan, a summary of the ~~Bank for services temporarily performed by a third party service provider~~test results and answer questions regarding the same. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s 's duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own ~~choosing~~choosing at its own expense, but is not obligated to do so, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s 's knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust in writing of its ~~determination~~determination in advance. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust’s~~ Trust data ~~or maintained or prepared by~~ and Trust information residing on the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the TrustBank's electronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Pgim Etf Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with respect to the performance of any one or more of the functions, services, duties or obligations of BNY under this Agreement upon thirty (30) days’ prior written notice to the Trust, but any such subcontracting, hiring, engaging or outsourcing shall not relieve the Bank of any of its obligations or liabilities hereunder and the Bank shall be ~~liable~~ responsible for ~~any loss or expense arising out of, or in connection with,~~ the actions or and omissions ~~to act~~ of such ~~agents or attorneys-in-fact~~ entities to the same extent ~~as if such~~ the Bank is responsible for its own actions or and omissions ~~to act were by the Bank~~under this Agreement. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. 7.3 The Bank shall ~~establish~~ establish, implement, maintain in effect and ~~maintain~~ periodically test and update, during the term of this Agreement, disaster recovery and business continuity ~~and disaster recovery~~ plans ~~and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”)~~ designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the Services to confirm continuing compliance with the Bank’s information security program, industry standards and applicable law. The Bank shall maintain or arrange with third parties for back-up facilities (“Back-Up Facilities”) to the primary operations and data centers used by the Bank to provide the services ~~and~~ (“Primary Facilities”). The Back-Up Facilities will be capable of providing the material services in the event an incident to the Primary Facilities significantly interrupts the delivery of a material service from that ~~makes reasonable provision for~~ facility. The Bank shall maintain (i) ~~periodic back-up~~ a written disaster recovery plan providing for continued operation of critical components of the ~~computer files and data~~ Bank’s systems in the event of an significant interruption in the performance or use of the Bank’s systems in connection with ~~respect to the Trusts;~~ this Agreement, and (ii) ~~emergency use~~ a written business continuity plan providing for the continued provision of ~~electronic data processing equipment~~ critical services pursuant to ~~provide services under~~ this ~~Agreement. Such~~ Agreement in the event of a significant disruption to such services, which such plans shall ~~cover~~ provide, where appropriate to the ~~facilities~~particular plan, ~~systems~~for the Bank (a) to maintain the Backup Facilities, ~~applications~~ (b) perform periodic disaster recovery and ~~employees~~ business continuity testing, and (c) maintain disaster recovery and business continuity capabilities and procedures that are ~~critical~~ commercially reasonable for a financial institution. In the event of an equipment failure or service disruption, the Bank shall, at no additional expense to a Fund, take reasonable steps to minimize the ~~provision~~ impact of the ~~Services~~equipment failure or service interruptions, ~~and will be tested at least annually to validate that~~ including implement the disaster recovery ~~strategies~~plan or business continuity plan, ~~requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment~~ or both, in accordance with ~~its program standards~~their terms, ~~and provide a high~~including using the Back-~~level summary of business continuity test results~~ Up Facilities to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing extent appropriate under such ~~plan.~~ plans. 7.4 The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; ~~labor disputes;~~ or acts of civil or military authority; or governmental ~~actions~~actions (each a “Force Majeure Event”), provided that: (1) the Bank will use commercially reasonable efforts to mitigate the effect of such Force Majeure Event; ~~or inability to obtain labor, material, equipment or transportation. Upon~~ (2) the Bank will promptly notify the Fund of the occurrence of ~~any such delay or failure~~the Event, its effect on performance, and how long the Bank ~~shall use commercially reasonable best efforts~~ expects it to ~~resume performance~~ last, and thereafter provide ongoing updates as ~~soon as practicable under~~ reasonably necessary. For the ~~circumstances. In the event that a Trust reasonably believes that~~ avoidance of doubt, the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with relieve the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant of its obligations to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service providerexecute its business continuity and/or disaster recovery plans. ~~7.4~~ 7.5 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. ~~7.5~~ 7.6 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust of its determination. ~~7.6~~ 7.7 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. ~~7.7~~ 7.8 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. ~~7.8~~ 7.9 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares. 7.10 Upon request by the Trust, the Bank shall no more than once per contract year: (i) provide the Trust with a copy of its current SOC 1, Type 2 audit report, or substantially equivalent external audit report, prepared in accordance with audit standards then prevalent in the financial industry (such as SSAE 18), for the system utilized by the Bank to provide the services hereunder, and (ii) participate in the Trust’s reasonable information security due diligence questionnaire process.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Guggenheim Funds Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-fact, provided that the Bank acts in good faith and with reasonable care in the selection and retention of such agents or attorneys-in-fact to and provided that such delegation shall not discharge the ~~same extent as if such actions or omissions to act were by the Bank~~Bank of any of its obligations hereunder. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. 7.2 The Bank shall be entitled to ~~conclusively~~ reasonably rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the terms and conditions attached hereto as [Exhibit B][If not attached to other service contracts.]. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; ~~sabotage; epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own ~~choosing~~choosing and at the Bank’s expense, but is not obligated to do so, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may ~~reply~~ rely upon and follow the written legal advice without liability hereunder provided it the advice obtained is reasonable and was in accordance with generally accepted industry standards, the Bank otherwise acts in compliance with this Agreement and the Bank notifies the ~~Trusts~~ Trust of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Exchange Listed Funds Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. The Bank shall be liable to any Fund, the Trust or the Sponsor for any loss or damage arising out of, or in connection with, the actions or omissions to act of any such Bank affiliate utilized hereunder to the same extent as the Bank would be liable hereunder if the Bank had taken or omitted such action itself. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust and Sponsor elect to transmit written instructions through an on-line communication system offered by the Bank, Trust's and Sponsor's use thereof shall be subject to the terms and conditions, the use thereof will be subject to any terms and conditions contained in a separate written agreement between the Trust or its affiliates and the Bank. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system at all times satisfying the requirements of its regulators (the “"Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan"). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~In the event that a Trust reasonably believes that the occurrence of any such event~~ The Bank will ~~substantially prevent, hinder or delay performance~~ provide an executive summary of the ~~services contemplated~~ Disaster Recovery Plan and Back-Up System upon reasonable request of the Trust or its Sponsor. The Bank will endeavor to test the adequacy of its Disaster Recovery Plan and Back-Up System at least annually. Upon request by ~~this Agreement for more than five (5) consecutive business days~~the Trust or its Sponsor, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank ~~in good faith in connection with any such mitigation and the Bank shall~~ will provide the Trust ~~reasonable assistance in good faith in connection therewith; provided, further, that~~ or its Sponsor with a letter summarizing the ~~Bank shall resume providing,~~ most recent Disaster Recovery Plan and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service providerBack-Up System test results. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Sponsor, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s 's duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Sponsor may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in good faith in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may at its own expense consult with legal counsel of its own choosing, but is not obligated to do so, and advise the ~~Trusts~~ Trust and Sponsor if any instructions provided by the ~~Trusts~~ Trust or Sponsor at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s 's knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may ~~reply~~ rely upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust and Sponsor of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust or Sponsor. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust’s~~ Trust data ~~or maintained or prepared by~~ residing on the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the TrustBank's electronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such issuance, sale or transfer; (b) The legality of the purchase of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, on behalf of a Fund, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the ~~Shares~~Shares of a Fund. 7.9 In performing the services hereunder, the Bank shall comply with the applicable provisions of each Fund's current Form S-1 registration statement, and effective amendments thereto. 7.10 The Bank will furnish to the Trust and its Sponsor, no more than once annually, its System and Organization Controls Reports (SOC 1) as well as such other reports and information relating to the Bank's policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. 7.11 The Bank shall cooperate with the Trust's and Sponsor's independent public accountants and shall take reasonable actions to provide such information, as may be reasonably requested by the Trust from time to time, to such accountants for the expression of their opinion. 7.12 Nothing in this Agreement shall limit or restrict the Bank, any affiliate of the Bank or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph the Bank may not use the Funds' or Sponsor's proprietary information in providing such services to such other third parties. 7.13 During the term of the Agreement, the Bank will implement and maintain an information security program ("ISP") with written policies and procedures reasonably designed to protect the confidentiality and integrity of Trust's confidential information provided to the Bank in accordance with the Agreement and when in the Bank's possession or under the Bank's control ("Customer Data"). The ISP will include administrative, technical and physical safeguards, appropriate to the type of Customer Data concerned, reasonably designed to: (i) maintain the integrity, confidentiality and availability of Customer Data; (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data; (iii) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to Customer or its clients, and (iv) provide for secure disposal of Customer Data.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Franklin Templeton Digital Holdings Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of an Authorized Person of the Trust, and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or ~~attorneys-in-~~attorneys in fact, provided that (i) the Bank acts in good faith and with reasonable care in the selection and retention of such agents or attorneys in fact and (ii) such agents or attorneys in fact shall be liable and agree to indemnify the ~~same extent as if such~~ Trust for any loss or expense arising out of, or in connection with, their actions or omissions to ~~act were by the Bank~~act. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall ~~discharge~~ relieve the Bank from any of its obligations, liabilities or indemnification obligations hereunder. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank.. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the terms and conditions attached hereto as Exhibit B. 7.3 The Bank ~~shall establish~~ has established and ~~maintain business continuity and~~ is maintaining a disaster recovery ~~plans~~ plan and back-up system ~~satisfying~~ that is reasonably designed to ensure the ~~requirements~~ Bank’s continued performance of its ~~regulators~~ obligations and duties under this Agreement (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control and which adversely affects the performance by the Bank in the performance of its obligations and duties under this Agreement, which are not a result of its ~~gross~~ negligence, bad faith, willful misconduct or reckless disregard of its duties under this Agreement, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or ~~transportation~~transportation provided that the Bank has established and is maintaining an effective Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 ~~At any time the~~ The Bank may apply to an officer of the ~~Trusts, but is not obligated~~ Trust or the designee appointed by him/her in writing to ~~do so,~~ BNY Mellon of the Trust for ~~written~~ instructions with respect to any matter arising in connection with the Bank’s ~~duties~~ performance hereunder for the Trust and ~~obligations under this Agreement~~its Funds, and the ~~Bank, its agents, and subcontractors~~ Bank shall not be liable for any action taken or omitted to be taken by it in good faith in ~~accordance~~ conformity with such ~~instructions~~Instructions and without bad faith or willful misconduct. Such application ~~by the Bank~~ for instructions ~~from an officer of~~ shall be made as much in advance as is practicable under the ~~Trusts may, at the option of the Bank,~~ circumstances and shall set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken~~, and the~~ . The Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received ~~written~~ instructions from an officer of the Trust or ~~oral instructions~~ the designee appointed by him/her in writing to BNY Mellon of the Trust in response to such application specifying the action to be taken or omitted~~. In connection with the foregoing, the~~ . 7.6 The Bank may consult with ~~legal~~ counsel of to the Trust or its own ~~choosing~~external counsel, ~~but is not obligated~~ at the Trust’s expense, or with its internal counsel, with respect to ~~do so~~any matter arising in connection with the services to be performed by the Bank under this Agreement, and shall promptly advise the ~~Trusts if any instructions provided by the Trusts at the request~~ Trust of the advice or opinion of such counsel, provided, however, that unless the circumstances do not reasonably permit the giving of notice to the Trust, the Bank ~~pursuant~~ shall give to ~~this Article~~ the Trust notice of the counsel it intends to use and await the Trust’s approval thereof, which approval shall not be unreasonably withheld, except that no such notice or ~~otherwise would,~~ approval shall be required with respect to any matter or question of law referred solely to the Bank’s ~~knowledge~~in-house counsel, ~~cause~~ and the Bank shall give prompt after the fact notice where prior notice is not given. The Bank shall be fully protected with respect to ~~take any action~~ anything done or ~~omit to take any action contrary to any law, rule, regulation~~ omitted by it in good faith in accordance with the written advice or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of either Trust counsel or its own counsel~~) and the course of conduct~~ , provided such written advice or opinion is ~~not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written~~ consistent with generally accepted industry legal ~~advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination~~standards. ~~7.6~~ 7.7 The ~~Bank, its agents and subcontractors~~ Bank may act upon any paper or document, actually received by the Bank and reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents ~~provided to~~ actually received by the Bank ~~or its agents or subcontractors~~ by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, ~~and~~ until such time as the Bank shall ~~not be held to~~ have ~~notice of~~ actually received a paper, document, instruction, information, data, records or documents indicating that any ~~change of authority of any person~~such have been revised, ~~until receipt of written notice thereof from the Trusts~~amended or superseded. ~~7.7 The Bank~~ 7.8 Nothing herein shall ~~retain title~~ be deemed to ~~and~~ transfer any ownership of ~~any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable~~ one party’s intellectual property or ~~copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and~~ other ~~related legal~~ proprietary rights ~~utilized by~~ to the ~~Bank in connection with the services provided by the Bank hereunder~~other party. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. ~~7.8~~ 7.9 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any ~~dividend~~ distribution by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (ProShares Trust II)

Concerning the Bank. (a) The Bank ~~may~~ may, at its own expense, employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and Bank shall be liable and responsible to the Trust for any ~~loss~~ act or ~~expense arising out of~~omission of any Bank affiliate in the manner, ~~or in connection with, the actions or omissions to act of such agents or attorneys-in-fact~~ and to the same ~~extent~~ extent, as if though such ~~actions~~ act or ~~omissions to act~~ omission were by that of the Bank. (b) The Bank may, at its own expense and without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations ~~hereunder~~hereunder and Bank shall be liable and responsible to the Trust for any act or omission of any Bank affiliate in the manner, and to the same extent, as though such act or omission were that of the Bank. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the terms and conditions associated with such system. 7.3 The Bank shall ~~establish~~ continuously maintain such computer and ~~maintain business continuity~~ back-up systems and disaster recovery plans as are required by all applicable laws and ~~back-up system satisfying the requirements of its regulators~~ regulations (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement ~~arising out~~ due to forces beyond the control of ~~or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence~~the Bank, including without ~~limitation~~limitation acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God~~; earthquakes; fires; floods; wars; civil~~ , or ~~military disturbances; sabotage; epidemics or pandemics; riots; interruption~~interruptions, loss or malfunctions of ~~transportation~~utilities, communications or computer (~~hardware or software~~software and hardware) ~~or communication~~ services~~; labor disputes; acts~~ , but only if the Bank is commercially reasonable in its maintenance of ~~civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation~~the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~the~~ each Authorized Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Authorized Participation Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the ~~Bank, its agents, and subcontractors~~ Bank shall not be liable for any action taken or omitted to be taken by the Bank in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own ~~choosing~~choosing at its own expense, but is not obligated to do so, and advise the ~~Trusts~~ Trust if any instructions provided by the ~~Trusts~~ Trust at the request of the Bank pursuant to this ~~Article~~ Section or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust in writing of its ~~determination~~determination in advance. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights developed and utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Causeway ETMF Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank ~~and~~ with the prior written consent of the Trust (which consent shall not be unreasonably withheld) (“Permitted Delegates”), provided however that no such relationship, agreement or understanding shall discharge Bank from its obligations hereunder. The Bank shall be liable for any ~~loss or expense~~ Losses arising out of, or in connection with, the actions or omissions of such Permitted Delegates, when the Bank failed to act with good faith, reasonable care and prudence in the retention and monitoring of ~~such agents or attorneys-in-fact to~~ the ~~same extent as if such actions~~ Permitted Delegate. For other Losses associated with the acts or omissions of a Permitted Delegate, BNY Mellon will make good faith efforts to ~~act were by the Bank~~pursue, claim and recover Losses from any such unaffiliated third party and its liability shall limited to those amounts actually recovered. (ba) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations ~~hereunder~~hereunder and the Bank shall remain liable to the Trust for the acts and omissions of any subcontractor under this Section 7.1(b) as it is for its own acts and omissions under this Agreement. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank~~. 7.3 The Bank~~ . If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall ~~establish~~ be subject to the terms and ~~maintain business continuity and disaster recovery plans and back-up system satisfying the requirements of its regulators (the~~ conditions attached hereto as Appendix II. “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for Written Instructions” shall mean (i) ~~periodic back~~a written instruction signed by an authorized person, as identified by the Trust or the Trust’s principal underwriter (“Authorized Person”), including manually executed originals and tele-up facsimile of ~~the computer files and data with respect~~ a manually executed original or other process; (ii) to the ~~Trusts~~extent permitted by the Bank, trade instructions transmitted (and received by the Bank) by means of an electronic transaction reporting system access to which requires use of a password or other authorized identifier; and (iiiii) ~~emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical~~ to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan. The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, extent permitted by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics or pandemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation. Upon the occurrence of any such delay or failure, the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. In the event that a Trust reasonably believes that the occurrence of any such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the Participation Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to an officer of the Trusts, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, ~~its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions~~ electronic mail from an ~~officer of~~ Authorized Person in a format mutually acceptable to the Trusts may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the Trusts if any instructions provided by the Trusts at the request of the Bank pursuant parties to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determinationAgreement. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Trusts. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the Trusts shall retain all ownership rights in each particular Trust’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trust. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the Trusts to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the Trusts to request such purchase; (c) The legality of the declaration of any dividend by the Trusts, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Rydex Etf Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust and Sponsor (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-~~fact to~~ fact, provided that the ~~same extent as if~~ Bank acts in good faith and with reasonable care in the selection and retention of such ~~actions~~ agents or ~~omissions to act were by the Bank~~attorneys-in-fact. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. The Bank shall be liable to any Fund, the Trust or the Sponsor for any loss or damage arising out of, or in connection with, the actions or omissions to act of any such Bank affiliate utilized hereunder to the same extent as the Bank would be liable hereunder if the Bank had taken or omitted such action itself. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust ~~agrees~~ and Sponsor agree that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank. If the Trust and Sponsor elect to transmit written instructions through an on-line communication system offered by the Bank, Trust’s and Sponsor’s use thereof shall be subject to the terms and conditions, the use thereof will be subject to any terms and conditions contained in a separate written agreement between the Trust or its affiliates and the Bank. 7.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of its regulators (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its ~~gross~~ negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~In the event that a Trust reasonably believes that the occurrence of any such event~~ The Bank will ~~substantially prevent, hinder or delay performance~~ provide an executive summary of the ~~services contemplated~~ Disaster Recovery Plan and Back-Up System upon reasonable request of the Trust or its Sponsor. The Bank will test the adequacy of its Disaster Recovery Plan and Back-Up System at least annually. Upon request by ~~this Agreement for more than five (5) consecutive business days~~the Trust or its Sponsor, the Trust may take commercially reasonable actions to mitigate the impact of such services not being provided, including, but not limited to, at the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank ~~in good faith in connection with any such mitigation and the Bank shall~~ will provide the Trust ~~reasonable assistance in good faith in connection therewith; provided, further, that~~ or its Sponsor with a letter summarizing the ~~Bank shall resume providing,~~ most recent Disaster Recovery Plan and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service providerBack-Up System test results. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the ~~Participation~~ Authorized Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the Participation Agreement. 7.5 At any time the Bank may apply to ~~an officer of~~ the ~~Trusts~~Sponsor, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an ~~officer of the Trusts~~ Sponsor may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the ~~Bank~~ Bank, at its own expense, may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the ~~Trusts~~ Trust and Sponsor if any instructions provided by the ~~Trusts~~ Trust or Sponsor at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the ~~Trusts~~Trust, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the ~~Trusts~~ Trust and Sponsor of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust or Sponsor. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such issuance, sale or transfer; (b) The legality of the purchase of any ~~Shares~~Shares of a Fund, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust, on behalf of a Fund, to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, on behalf of a Fund, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the ~~Shares~~Shares of a Fund. 7.9 In performing the services hereunder, the Bank shall comply with the applicable provisions of each Fund’s current prospectus(es) and statement(s) of additional information, and effective amendments thereto. 7.10 The Bank will furnish to the Trust and its Sponsor, no more than once annually, its System and Organization Controls Reports (SOC 1) as well as such other reports and information relating to the Bank’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. 7.11 The Bank shall cooperate with the Trust’s and Sponsor’s independent public accountants and shall take reasonable actions to provide such information, as may be reasonably requested by the Trust from time to time, to such accountants for the expression of their opinion. 7.12 Nothing in this Agreement shall limit or restrict the Bank, any affiliate of the Bank or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph the Bank may not use the Funds’ or Sponsor’s proprietary information in providing such services to such other third parties. 7.13 During the term of the Agreement, the Bank will implement and maintain an information security program ("ISP") with written policies and procedures reasonably designed to protect the confidentiality and integrity of Trust’s confidential information provided to the Bank in accordance with the Agreement and when in the Bank’s possession or under the Bank’s control (“Customer Data”). The ISP will include administrative, technical and physical safeguards, appropriate to the type of Customer Data concerned, reasonably designed to: (i) maintain the integrity, confidentiality and availability of Customer Data; (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data; (iii) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to Customer or its clients, and (iv) provide for secure disposal of Customer Data.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Franklin Templeton Holdings Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the Trust (which consent shall not be unreasonably withheld), and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-fact, provided that the Bank acted in accordance with its standard of care as set forth hereunder in selecting such agents or attorneys-in-fact and provided further that to the ~~same~~ extent ~~as if~~ such ~~actions~~ agents or ~~omissions to act were by~~ attorneys-in-fact have breached the terms and conditions of any agreement that they may have entered into with the Bank, relating to the provision of services to the Trust, the Bank shall pursue all such claims, and pass along any recovery, on a pro-rata basis to the Trust. Except as otherwise specifically provided herein, no such appointment shall discharge the Bank from its obligations hereunder. (b) The Bank may, without the prior consent of ~~any~~ the Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder. ~~7.2~~ 8.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank.. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, Trust’s use thereof shall be subject to the terms and conditions attached hereto as Exhibit B. ~~7.3~~ 8.3 The Bank shall establish and maintain ~~business continuity and~~ a disaster recovery ~~plans~~ plan and back-up system satisfying the requirements of ~~its regulators~~ all applicable law, rules, and regulations and which is reasonable under the circumstances (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan). The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this ~~Agreement~~ Section 8.3 arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross ~~negligence~~negligence or willful misconduct, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; ~~epidemics or pandemics~~epidemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or ~~failure,~~ failure the Bank shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. 8.4 The Bank represents that it and each Bank Affiliate that maintains or has access to non-public personal consumer/customer financial information (“NPPI”): has procedures in place reasonably designed to protect the privacy of NPPI to the extent required by applicable law, rule and regulation. In The Bank agrees to notify the Trust as promptly as practicable under the circumstances upon the event ~~that a Trust reasonably believes that the occurrence~~ of any loss of data, unauthorized access to data, or data security breach involving such event will substantially prevent, hinder or delay performance of the services contemplated by this Agreement for more than five (5) consecutive business days, the Trust may take commercially reasonable actions information relating to ~~mitigate the impact of such services not being provided, including, but not limited to, at~~ the Trust’s expense, contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with the Bank in good faith in connection with any such mitigation and the Bank shall provide the Trust reasonable assistance in good faith in connection therewith; provided, further, that the Bank shall resume providing, and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service provider. ~~7.4~~ 8.5 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the ~~Participation~~ Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the ~~Participation~~ Participant Agreement. ~~7.5~~ 8.6 At any time the Bank may apply to an officer of the ~~Trusts~~Trust, but is not obligated to do so, for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel to the Trust or its outside counsel about matters involving the Trust or any Fund, at the Trust’s reasonable expense not to exceed $25,000 for any such consultation, unless expense in excess of ~~its own choosing, but~~ such amount is ~~not obligated to do so~~approved by the Trust, and ~~advise~~ shall be fully protected with respect to anything done or omitted by it in good faith without gross negligence or willful misconduct in the ~~Trusts if any instructions provided by the Trusts at the request~~ execution of ~~the Bank pursuant to this Article~~ such advice or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of such counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination. ~~7.6~~ 8.7 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. ~~7.7~~ 8.8 The Bank shall retain title to and ownership of any and all ~~data bases~~databases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the ~~Trusts~~ Trust shall retain all ownership rights in ~~each particular Trust~~Trust data residing on the Bank’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trustelectronic system. ~~7.8~~ 8.9 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares. 8.10 In conjunction with Trust’s accountants, Bank shall file such appropriate information returns concerning the payment and composition of dividends and capital gain distributions and tax withholding with the proper Federal, State and local authorities as are required by law to be filed by the Trust and shall withhold such sums as are required to be withheld by applicable law. 8.11 Bank shall provide information or reports to the Trust or the Trust’s Chief Compliance Officer as may be reasonably requested.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (TrimTabs ETF Trust)

Concerning the Bank. (a) The Bank may employ agents or attorneys-in-fact ~~which~~ that are not affiliates of the Bank ~~and~~ with the prior written consent of the Trust (which consent shall not be unreasonably withheld). No such subcontract, agreement or understanding shall discharge the Bank from its obligations hereunder. The Bank’s liability with respect to any non-affiliated delegate or agent approved by the Trust shall be ~~liable for any loss~~ limited to such instances where the Bank failed to reasonably select, monitor and retain such delegate or ~~expense arising out of, or in connection with, the actions or omissions to act of such agents or attorneys-in-fact to the same extent as if such actions or omissions to act were by the Bank~~agent. (b) The Bank may, ~~without~~ upon prior written notice to the ~~prior consent of any~~ Trust, enter into subcontracts, agreements and understandings with any Bank affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge the Bank from its obligations hereunder. The Bank shall be liable to any Fund for any loss or damage arising out of, or in connection with, the actions or omissions to act of any such Bank affiliate utilized hereunder to the same extent as it would be liable hereunder if it had taken or omitted such action itself. 7.2 The Bank shall be entitled to conclusively rely upon ~~Proper Instructions~~ any written or oral instruction actually received by the Bank and reasonably believed by the Bank to be ~~issued from a person~~ duly authorized ~~by the Portfolio~~ and delivered. ~~Each~~ The Trust agrees to ~~promptly~~ forward to the Bank written instructions confirming oral ~~instructions~~instructions by the close of business of the same day that such oral instructions are given to the Bank. ~~Each~~ The Trust agrees that the fact that such confirming written instructions are not received or that contrary written instructions are received by the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected by the Bank.. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank, the Trust’s use thereof shall be subject to the terms and conditions attached hereto as Appendix A. 7.3 The Bank shall establish and maintain a business continuity and disaster recovery ~~plans~~ plan and back-up system at all times satisfying the requirements of its regulators and all applicable law, rules, and regulations and which is reasonable under the circumstances (the “Disaster Recovery Plan and Back-Up System”) designed to minimize interruptions of service and ensure recovery of systems and applications used to provide the services and that makes reasonable provision for (i) periodic back-up of the computer files and data with respect to the Trusts; and (ii) emergency use of electronic data processing equipment to provide services under this Agreement. Such plans shall cover the facilities, systems, applications and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery strategies, requirements and protocols are viable and sustainable. The Bank shall test the ability to recover to alternate data processing equipment in accordance with its program standards, and provide a high-level summary of business continuity test results to the Trusts upon request. The Bank will remedy any material deficiencies in accordance with the Bank’s program standards. Upon reasonable advance notice, and at no cost to the Bank and at a time mutually agreeable to the parties, each Trust retains the right to review in a Bank clean room the Bank’s business continuity, crisis management, disaster recovery, and third-party vendor management processes and programs (including discussions with the relevant subject matter experts and an on-site review of the production facilities used) related to delivery of the services no more frequently than an annual basis; provided that no documentation may be copied, disclosed to any third party, or transmitted or removed from the Bank’s premises except as mutually agreed in writing. Upon reasonable request, the Bank also shall discuss with senior management of a Trust any business continuity/disaster recovery plan of the Bank and/or provide a high-level presentation summarizing such plan. The Bank shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control which are not a result of its gross negligence, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics or pandemics; riots; interruption, loss or malfunctions of transportation, computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation). Upon the occurrence of any ~~such~~ delay or failure, the Bank will promptly notify the Trust of the disruption and the steps being implemented under the Disaster Recovery Plan and Back-Up System and shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~In the event that a Trust reasonably believes that the occurrence of any such event~~ The Bank will ~~substantially prevent, hinder or delay performance~~ provide an executive summary of the ~~services contemplated by this Agreement for more than five (5) consecutive business days~~Disaster Recovery Plan and Back-Up System upon reasonable request of the Trust. The Bank will test the adequacy of its Disaster Recovery Plan and Back-Up System at least annually and upon request, the Trust may ~~take commercially reasonable actions to mitigate the impact of~~ participate in such ~~services not being provided, including, but not limited to, at~~ test. Upon request by the Trust~~’s expense~~, ~~contracting with another service provider to provide such services during such period; provided, that the Trust shall consult with~~ the Bank ~~in good faith in connection with any such mitigation and the Bank shall~~ will provide the Trust ~~reasonable assistance in good faith in connection therewith; provided, further, that~~ with a letter assessing the ~~Bank shall resume providing,~~ most recent Disaster Recovery Plan and the Trust shall pay for, such services when the Bank resumes providing them, unless the Trust have terminated this Agreement pursuant to the terms of Section 9. Notwithstanding anything set forth in this Section 7.3, (a) in no event shall a Trust be obligated to pay any fees under this Agreement to the Bank with respect to any services not actually provided during any event described in this Section 7.3, and (b) the Trust shall have no responsibility to pay the Bank for services temporarily performed by a third party service providerBack-Up System test results. 7.4 The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and the ~~Participation~~ Participant Agreement, and no covenant or obligation shall be implied against the Bank in connection with this Agreement, except as set forth in this Agreement and the ~~Participation~~ Participant Agreement. 7.5 At any time the Bank may apply to an officer of the ~~Trusts, but is not obligated to do so,~~ Trust for written instructions with respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such instructions. Such application by the Bank for instructions from an officer of the ~~Trusts~~ Trust may, at the option of the Bank, set forth in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, the Bank has received written or oral instructions in response to such application specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its own choosing, but is not obligated to do so, and advise the Trusts if any instructions provided by the Trusts at the request of the Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers. In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct contained in the instructions received from the Trusts, the Bank may reply upon and follow the written legal advice without liability hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trusts of its determination. 7.6 The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from the ~~Trusts~~Trust. 7.7 The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that the Trusts shall retain all ownership rights in each particular Trust’s data or maintained or prepared by the Bank in connection with the services provided by the Bank hereunder. The Bank agrees that all records prepared or maintained by the Bank relating to the services to be performed by the Bank hereunder are the property of the applicable Trust and will be preserved, maintained in accordance with the record retention policies of the Bank and made available upon reasonable request to the Trust. 7.8 Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the ~~Trusts~~ Trust to request such issuance, sale or transfer; (b) The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the ~~Trusts~~ Trust to request such purchase; (c) The legality of the declaration of any dividend by the ~~Trusts~~Trust, or the legality of the issue of any Shares in payment of any stock dividend; or (d) The legality of any recapitalization or readjustment of the Shares. 7.8 In performing the services hereunder, the Bank shall comply with the applicable provisions of each Fund’s current prospectus(es) and statement(s) of additional information, and effective amendments thereto, and with any applicable procedures adopted by the Board of Trustees of the Trust actually provided to the Bank. 7.9 On a quarterly basis, the Bank will provide to the Trust a certification in connection with Rule 38a-1 under the 1940 Act, including an attestation as to whether there have been any material changes to the summaries of policies and procedures provided to the Trust, and sub-certifications related to the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. The Bank reserves the right to amend and update its compliance program and the measurement tools and certifications provided thereunder from time to time in order to address changing regulatory and industry developments. 7.10 The Bank will furnish to the Trust, on a semi-annual basis, a report in accordance with Statements on Standards for Attestation Engagements No. 16 (the “SSAE Report”) as well as such other reports and information relating to the Bank’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. 7.11 The Bank shall cooperate with the Trust’s independent public accountants and shall take all reasonable actions in the performance of its obligations under this Agreement to provide such information, as may be reasonably requested by the Trust from time to time, to such accountants for the expression of their opinion. 7.12 Nothing in this Agreement shall limit or restrict the Bank, any affiliate of the Bank or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph the Bank may not use the Funds’ or F▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇’▇ proprietary information, know-how or methodologies in providing such services to such other third parties.

Appears in 1 contract

Sources: Transfer Agency and Service Agreement (Franklin ETF Trust)

Common use of Concerning the Bank Clause in Contracts