TRANSFER AGENCY AND SHAREHOLDER SERVICES AGREEMENT
EXHIBIT (h)(4)
TRANSFER AGENCY AND SHAREHOLDER SERVICES AGREEMENT | |
Β | |
Β | This Transfer Agency And Shareholder Services Agreement ("Agreement") is effective as ofΒ |
September 1, 2011 ("Effective Date") by and between BNY Mellon Investment Servicing (US) Inc.Β | |
("BNYM"), and, individually and separately, but not jointly, each of the investment companies listed onΒ | |
Schedule B to this Agreement (each such investment company referred to herein as the "InvestmentΒ | |
Company"). Capitalized terms, and certain noncapitalized terms, not otherwise defined shall have theΒ | |
meanings set forth in Schedule A (Schedule A also contains an index of defined terms providing theΒ | |
location of all defined terms).Β | |
Β | |
Background | |
Β | |
A.Β | The Investment Company is registered as an open-end management investment company underΒ |
the 1940 Act.Β | |
Β | |
B.Β | The Investment Company wishes to retain BNYM to serve as its transfer agent, registrar,Β |
dividend disbursing agent and shareholder servicing agent, or, if applicable, to serve as the transfer agent,Β | |
registrar, dividend disbursing agent and shareholder servicing agent for each of its Portfolios listed onΒ | |
Schedule B attached hereto and made a part hereof, as such Schedule B may be amended from time toΒ | |
time, and BNYM wishes to furnish such services. The term "Fund" as used hereinafter in this AgreementΒ | |
means, as applicable, each Fund of an Investment Company identified on Schedule B and whereΒ | |
appropriate, the Investment Company on behalf of each such Fund or, if no Funds are so identified, theΒ | |
Investment Company, in its individual and separate capacity.Β | |
Β | |
Terms | |
Β | |
Β | NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained,Β |
and intending to be legally bound hereby, the parties hereto agree to the statements made in the precedingΒ | |
paragraphs and as follows:Β | |
Β | |
1.Β | Appointment. The Fund hereby appoints BNYM to serve as transfer agent, registrar, dividendΒ |
disbursing agent and shareholder servicing agent to the Fund and BNYM accepts such appointments andΒ | |
agrees in connection with such appointments to furnish the services expressly set forth in Section 3.Β | |
BNYM shall be under no duty to provide any service to or on behalf of the Fund except as specifically setΒ | |
forth in Section 3 or as BNYM and the Fund may specifically agree in a written amendment hereto;Β | |
provided that the foregoing is not intended to limit any obligation of BNYM under this Agreement.Β | |
BNYM shall not bear, or otherwise be responsible for, any fees, costs or expenses charged by any thirdΒ | |
party service providers engaged by the Fund or by any other third party service provider to the Fund notΒ | |
engaged by BNYM.Β | |
Β | |
2.Β | Records; Access. BNYM shall create and maintain all records required of it pursuant to itsΒ |
duties hereunder in accordance with all applicable laws, rules and regulations, including records requiredΒ | |
by Section 31(a) of the 1940 Act and the rules thereunder. Where applicable, such records shall beΒ | |
maintained by BNYM for the periods and the places required by Rule 31a-2 under the 1940 Act. TheΒ | |
books and records pertaining to the Fund, which are in the possession or under the control of BNYM,Β | |
shall be the property of the Fund. The Fund and Authorized Persons shall have access to such books andΒ | |
records at all times during BNYM's normal business hours. Upon the reasonable request of the Fund,Β | |
copies of any such books and records shall be provided by BNYM to the Fund or to an AuthorizedΒ | |
Person, at the Fund's expense.Β |
Β
Page 1
3.Β | Services. BNYM agrees to service each Fund in a dedicated staffing environment with respect toΒ | |
client services, transaction processing, correspondence, management company support and Full ServiceΒ | ||
Retail (βFSRβ) dedicated systems throughout the term of the Agreement, unless otherwise agreed by aΒ | ||
particular Fund. BNYM agrees to provide the services hereunder in accordance with the Service LevelΒ | ||
Standards attached hereto as Schedule G.Β | ||
(a)Β | Transfer Agent, Registrar, Dividend Disbursing Agent and Shareholder Servicing:Β | |
(1)Β | Services to be provided on an ongoing basis to the extent applicable to a particular Fund:Β | |
Β | (i)Β | Calculate 12b-1 payments;Β |
Β | (ii)Β | Maintain shareholder registrations;Β |
Β | (iii)Β | Review new applications and correspond with shareholders to complete or correctΒ |
Β | Β | information;Β |
Β | (iv)Β | Direct payment processing of checks or wires;Β |
Β | (v)Β | Prepare and certify shareholder lists in conjunction with proxy solicitations;Β |
Β | (vi)Β | Countersign share certificates;Β |
Β | (vii)Β | Prepare and mail to shareholders confirmation of activity;Β |
Β | (viii)Β | Provide toll-free lines for direct shareholder use, plus customer liaison staff for on-lineΒ |
Β | Β | inquiry response;Β |
Β | (ix)Β | Mail duplicate confirmations to broker-dealers of their clients' activity, whether executedΒ |
Β | Β | through the broker-dealer or directly with BNYM;Β |
Β | (x)Β | Provide periodic shareholder lists and statistics to the Fund;Β |
Β | (xi)Β | Provide detailed data for underwriter/broker confirmations;Β |
Β | (xii)Β | Prepare periodic mailing of year-end tax and statement information;Β |
Β | (xiii)Β | Notify on a timely basis the Fund's investment adviser, accounting agent, and custodianΒ |
Β | Β | ("Fund Custodian") of Share activity;Β |
Β | (xiv)Β | Perform other participating broker-dealer shareholder services as may be agreed uponΒ |
Β | Β | from time to time;Β |
Β | (xv)Β | Accept and post daily Share purchases and redemptions;Β |
Β | (xvi)Β | Accept, post and perform shareholder transfers and exchanges;Β |
Β | (xvii)Β | Issue and cancel certificates (when requested in writing by the shareholder) to the extentΒ |
Β | permitted by the Fundβs prospectus; andΒ |
Β
Page 2
Β | (xviii)Β | Remediation Services, as required; andΒ |
Β | ||
Β | (xviii)Β | Perform certain administrative and ministerial duties relating to opening, maintaining andΒ |
Β | Β | processing transactions for shareholders or financial intermediaries that trade sharesΒ |
Β | Β | through the NSCC.Β |
Β | ||
(2)Β | Purchase of Shares. BNYM shall issue and credit an account of an investor, in the mannerΒ | |
described in the Fund's prospectus, once it receives:Β | ||
Β | ||
Β | (i)Β | A purchase order in completed proper form;Β |
Β | ||
Β | (ii)Β | Proper information to establish a shareholder account; andΒ |
Β | ||
Β | (iii)Β | Confirmation of receipt or crediting of funds for such order to the Fund Custodian.Β |
Β | ||
(3)Β | Redemption of Shares. BNYM shall process requests to redeem Shares as follows:Β | |
Β | ||
Β | (i)Β | All requests to transfer or redeem Shares and payment therefore shall be made inΒ |
Β | Β | accordance with the Fund's prospectus, when the shareholder tenders Shares in properΒ |
Β | Β | form, accompanied by such documents as BNYM reasonably may deem necessary.Β |
Β | ||
Β | (ii)Β | BNYM reserves the right to refuse to transfer or redeem Shares until it is satisfied that theΒ |
Β | Β | endorsement on the instructions is valid and genuine and that the requested transfer orΒ |
Β | Β | redemption is legally authorized, and it shall incur no liability for the refusal, in goodΒ |
Β | Β | faith, to process transfers or redemptions which BNYM, in its good judgment, deemsΒ |
Β | Β | improper or unauthorized, or until it is reasonably satisfied that there is no basis to anyΒ |
Β | Β | claims adverse to such transfer or redemption, in each case provided that it notifies theΒ |
Β | Β | requestor of any defect in the redemption request in a timely manner.Β |
Β | ||
Β | (iii)Β | When Shares are redeemed, BNYM shall deliver to the Fund Custodian and the Fund orΒ |
Β | Β | its designee a notification setting forth the number of Shares redeemed. Such redeemedΒ |
Β | Β | Shares shall be reflected on appropriate accounts maintained by BNYM reflectingΒ |
Β | Β | outstanding Shares of the Fund and Shares attributed to individual accounts.Β |
Β | ||
Β | (iv)Β | BNYM shall, upon receipt of the monies provided to it by the Fund Custodian for theΒ |
Β | Β | redemption of Shares, pay such monies as are received from the Fund Custodian.Β |
Β | ||
Β | (v)Β | When a broker-dealer notifies BNYM of a redemption desired by a customer, and theΒ |
Β | Β | Fund Custodian provides BNYM with funds, BNYM shall prepare and send theΒ |
Β | Β | redemption check to the broker-dealer and made payable to the broker-dealer on behalf ofΒ |
Β | its customer, unless otherwise instructed in writing by the broker-dealer.Β | |
Β | ||
Β | (vi)Β | BNYM shall not process or effect any redemption requests with respect to Shares of theΒ |
Β | Β | Fund after receipt by BNYM or its agent of notification of the suspension of theΒ |
Β | Β | determination of the net asset value of the Fund.Β |
Β | ||
(4)Β | Dividends and Distributions. Upon receipt by BNYM of Written Instructions containing allΒ | |
requisite information that may be reasonably requested by BNYM, including payment directions andΒ | ||
authorization, BNYM shall issue Shares in payment of the dividend or distribution, or, upon shareholderΒ | ||
election, pay such dividend or distribution in cash, if provided for in the Fund's prospectus. If requestedΒ | ||
by BNYM, the Fund shall furnish a certified resolution of the Fund's Board of Trustees (which may be aΒ |
Β
Page 3
standing resolution authorizing the Fundβs officers to declare and authorize the payment of a dividend orΒ | |||
other distribution) declaring and authorizing the payment of a dividend or other distribution but BNYMΒ | |||
shall have no duty to request such. Issuance of Shares or payment of a dividend or distribution asΒ | |||
provided for in this Section 3(a)(4), as well as payments upon redemption as described in Section 3(a)(3),Β | |||
shall be made after deduction and payment of any and all amounts required to be withheld in accordanceΒ | |||
with any applicable tax laws or other laws, rules or regulations. BNYM shall (i) mail to the Fund'sΒ | |||
shareholders such tax forms and other information, or permissible substitute notice, relating to dividendsΒ | |||
and distributions paid by the Fund as are required to be filed and mailed by applicable law, rule orΒ | |||
regulation; and (ii) prepare, maintain and file with the IRS and other appropriate taxing authorities reportsΒ | |||
relating to all dividends by the Fund paid to its shareholders (above threshold amounts stipulated byΒ | |||
applicable law) as required by tax or other laws, rules or regulations; provided, however, notwithstandingΒ | |||
the foregoing and notwithstanding any other provision of this Section 3(a)(4) or this Agreement: (A)Β | |||
BNYM's exclusive obligations with respect to any written statement that Section 19(a) of the 1940 ActΒ | |||
may require to be issued with respect to the Fund shall be, upon receipt of specific Written Instructions toΒ | |||
such effect, to receive from the Fund the information which is to be printed on the statement, to print suchΒ | |||
information on appropriate paper stock and to mail such statement to shareholders, and (B) BNYM's soleΒ | |||
obligation with respect to any dividend or distribution that Section 19(a) of the 1940 Act may require beΒ | |||
accompanied by such a written statement shall be to act strictly in accordance with the first threeΒ | |||
sentences of this Section 3(a)(4).Β | |||
Β | |||
(5)Β | Shareholder Account Services. BNYM may arrange, in accordance with the prospectus:Β | ||
Β | |||
Β | (i)Β | for issuance of Shares obtained through:Β | |
Β | |||
Β | Β | (A)Β | Any pre-authorized check plan; andΒ |
Β | |||
Β | Β | (B)Β | Direct purchases through broker wire orders, checks and applications.Β |
Β | |||
Β | (ii)Β | for a shareholder's:Β | |
Β | |||
Β | Β | (A)Β | Exchange of Shares for shares of another fund with which the Fund has exchangeΒ |
Β | Β | privileges;Β | |
Β | |||
Β | Β | (B)Β | Automatic redemption from an account where that shareholder participates in anΒ |
Β | Β | automatic redemption plan; and/orΒ | |
Β | |||
Β | Β | (C)Β | Redemption of Shares from an account with a checkwriting privilege.Β |
Β | |||
(6)Β | Communications to Shareholders. Subject to receipt by BNYM of timely Written Instructions,Β | ||
BNYM shall mail all communications by the Fund to its shareholders, including:Β | |||
Β | |||
Β | (i)Β | Confirmations of purchases and sales of Fund shares;Β | |
Β | |||
Β | (ii)Β | Monthly or quarterly statements;Β | |
Β | |||
Β | (iii)Β | Dividend, distribution and other notices; andΒ | |
Β | |||
Β | (iv)Β | Tax form information.Β | |
Β | |||
(7)Β | Records. BNYM shall maintain records of the accounts for each shareholder showing theΒ | ||
following information:Β | Β |
Β
Page 4
Β | (i)Β | Name, address and United States Tax Identification or Social Security number;Β |
Β | ||
Β | (ii)Β | Number and class of Shares held and number and class of Shares for which certificates, ifΒ |
Β | Β any, have been issued, including certificate numbers and denominations; | |
Β | ||
Β | (iii)Β | Historical information regarding the account of each shareholder, including dividendsΒ |
Β | Β | and distributions paid and the date and price for all transactions in a shareholder'sΒ |
Β | Β | account;Β |
Β | ||
Β | (iv)Β | Any stop or restraining order placed against a shareholderβs account;Β |
Β | ||
Β | (v)Β | Any correspondence relating to the maintenance of a shareholder's account;Β |
Β | ||
Β | (vi)Β | Information with respect to withholdings; andΒ |
Β | ||
Β | (vii)Β | Any information required in order for BNYM to perform any calculations required byΒ |
Β | Β | this Agreement.Β |
Β | ||
(8)Β | Lost or Stolen Certificates. BNYM shall place a stop notice against any certificate reported to beΒ | |
lost or stolen and comply with all applicable federal regulatory requirements for reporting such loss orΒ | ||
alleged misappropriation. A new certificate shall be registered and issued only upon:Β | ||
Β | ||
Β | (i)Β | The shareholder's pledge of a lost instrument bond or such other appropriate indemnityΒ |
Β | Β | bond issued by a surety company approved by BNYM; andΒ |
Β | ||
Β | (ii)Β | Completion of a release and indemnification agreement signed by the shareholder toΒ |
Β | Β | protect the Fund, BNYM and its affiliates.Β |
Β | ||
(9)Β | Shareholder Inspection of Stock Records. Upon a request from any Fund shareholder to inspectΒ | |
stock records, BNYM will notify the Fund on a timely basis and the Fund will issue Written InstructionsΒ | ||
granting or denying each such request. Unless BNYM has acted contrary to the Fund's WrittenΒ | ||
Instructions, the Fund agrees to and does hereby release BNYM from any liability for refusal ofΒ | ||
permission for a particular shareholder to inspect the Fund's stock records.Β | ||
Β | ||
(10)Β | Withdrawal of Shares and Cancellation of Certificates. Upon receipt of Written Instructions,Β | |
BNYM shall cancel outstanding certificates surrendered by the Fund to reduce the total amount ofΒ | ||
outstanding shares by the number of shares surrendered by the Fund.Β | ||
Β | ||
(11)Β | Lost Shareholders.Β | |
Β | ||
Β | (A)Β | BNYM shall perform such services as are required in order to comply with Rule 17Ad-17Β |
Β | of the 1934 Act (the "Lost Shareholder Rule"), including, but not limited to, those set forthΒ | |
Β | below. BNYM may, in its sole discretion, use the services of a third party to perform some of orΒ | |
Β | all such services.Β | |
Β | ||
Β | (i)Β | documentation of search policies and procedures;Β |
Β | ||
Β | (ii)Β | execution of required searches;Β |
Β
Page 5
Β | (iii)Β Β Β |
tracking results and maintaining data sufficient to comply with the Lost Shareholder | |
Β | Β | Rule;Β andΒ Β Β Β |
Β |
Β | (iv)Β Β Β |
preparation and submission of data required under the Lost Shareholder Rule. | |
Β | (B)Β Β Β |
For purposes of clarification: (i) Section 3(a)(11)(A) does not obligate BNYM to perform | |
Β | the services described therein for broker-controlled accounts, omnibus accounts and similar | ||
Β | accounts with respect to which BNYM does not receive or maintain information which would | ||
Β | permit it to determine whether the account owner is a "lost securityholder", as that term is defined | ||
Β | in the Lost Shareholder Rule; and (ii) no provision of this Agreement, including without | ||
Β | limitation Section 3(a)(11)(A), obligates BNYM to perform any escheat services or abandoned | ||
Β | property services for any Fund or any accounts hereunder - the Fund agrees and acknowledges | ||
Β | that the Fund alone is responsible for compliance with applicable escheat and abandoned property | ||
Β | laws.Β Β Β | ||
(12)Β Β Β |
Tax Advantaged Accounts. | ||
Β | (A)Β Β Β |
Certain definitions: | |
Β | (i)Β Β Β |
"Eligible Assets" means shares of the Fund and such other assets as the Fund and BNYM | |
Β | Β | may mutually agree. |
Β |
Β | (ii)Β Β Β |
"Participant" means a beneficial owner of a Tax Advantaged Account. | |
Β | (iii)Β Β Β |
"Tax Advantaged Account" means any of the following accounts: (i) a Traditional, SEP, | |
Β | Β | Xxxx, or SIMPLE individual retirement account, (ii) an account in a money purchase or | |
Β | Β | profit sharing plan, (iii) a single participant βkβ plan account, (iv) a Xxxxxxxxx educational | |
Β | Β | savings accounts, all within the meaning of Sections 408, 401, or 530 of the Code, and | |
Β | Β | (v) any other similar type of account agreed to by the parties in writing; which is | |
Β | Β | facilitated or sponsored by the Fund or affiliates of the Fund and with respect to which | |
Β | Β | the contributions of Participants are used to purchase or invest in solely Eligible Assets. | |
Β | (B)Β Β Β |
To the extent requested by the Fund, BNYM shall provide the following administrative | |
Β | services to Tax Advantaged Accounts, to the extent a particular administrative service is | ||
Β | appropriate to the Tax Advantaged Account under the Code: | ||
Β | (i)Β Β Β |
Establish a record of types and reasons for distributions (i.e., attainment of age 59-1/2, | |
Β | Β | disability, death, return of excess contributions, etc.); | |
Β | (ii)Β Β Β |
Record method of distribution requested and/or made; | |
Β | (iii)Β Β Β |
Receive and process designation of beneficiary forms requests; | |
Β | (iv)Β Β Β |
Examine and process requests for direct transfers between custodians/trustees; transfer | |
Β | Β | and pay over to the successor assets in the account and records pertaining thereto as | |
Β | Β | requested;Β Β Β | |
Β | (v)Β Β Β |
Prepare any annual reports or returns required to be prepared and/or filed by a custodian | |
Β | Β | of Tax Advantaged Accounts, including, but not limited to, an annual fair market value | |
Β | Β | report, Forms 1099R and 5498; and file same with the Internal Revenue Service and | |
Β | Β | provide same to the Participant or Participant's beneficiary, as applicable; and |
Page 6
(vi)Β | Perform applicable federal withholding and send to the Participant or Participant'sΒ | |
Β | beneficiary, as applicable, an annual TEFRA notice regarding required federal taxΒ | |
Β | withholding.Β | |
Β | ||
(C)Β | BNYM shall arrange for BNY Mellon Investment Servicing Trust, BNY Mellon Bank orΒ | |
other qualified institution (which may be an Affiliate of BNYM) to serve as custodian (theΒ | ||
"Custodian") for the Tax Advantaged Accounts ("Custodied Accounts"). In consideration forΒ | ||
such service, the Fund agrees:Β | ||
Β | ||
(i)Β | To the extent practicable, the Fund will provide sixty (60) days advance written notice toΒ | |
Β | BNYM, the Custodian and Participants in connection with a Fund liquidation or anyΒ | |
Β | other event or circumstance or act or course of conduct involving the Fund or assets heldΒ | |
Β | in a Custodied Account that would result in an involuntary liquidation of any asset heldΒ | |
Β | in a Custodied Account or would otherwise materially affect the Custodied Account, itsΒ | |
Β | operation, the rights or obligations of a Participant, any asset in a Custodied Account orΒ | |
Β | the terms or provisions of a Custodied Account ("Material Event"), and to the extentΒ | |
Β | there is a Fund liquidation and an alternative investment vehicle is not provided by theΒ | |
Β | Fund or an affiliate, reimburse BNYM and BNY Mellon Investment Servicing Trust forΒ | |
Β | all reasonable costs, including costs of legal counsel, incurred in determining, inΒ | |
Β | consideration of the Material Event, an appropriate course of conduct under the law,Β | |
Β | including the Code, and under agreements with Participants and in implementing theΒ | |
Β | course of conduct determined to be appropriate, provided that BNYM provide the FundΒ | |
Β | with advance notice that it intends to employ outside counsel for this purpose;Β | |
Β | ||
(ii)Β | The Fund will, at its own cost and expense, at the request of BNYM and in accordanceΒ | |
Β | with all applicable provisions of the Code:Β | |
Β | ||
Β | (aa)Β | appoint and provide for a qualified successor custodian for all CustodiedΒ |
Β | Β | Accounts in the event this Agreement expires or is terminated or if any otherΒ |
Β | Β | event or circumstance occurs which constitutes commercially reasonable causeΒ |
Β | Β | for the Custodian to resign as custodian of the Custodied Accounts or seekΒ |
Β | Β | appointment of a successor custodian,Β |
Β | ||
Β | (bb)Β | provide for any interim custodial or transfer arrangements made appropriate byΒ |
Β | Β | any of the circumstances governed by clause (aa), andΒ |
Β | ||
Β | (cc)Β | cause all Custodied Accounts and all assets in the Custodied Accounts to transferΒ |
Β | Β | to such successor or interim custodians;Β |
Β | ||
(iii)Β | The Custodian may require Participants and all employers, advisors or other partiesΒ | |
Β | involved in any manner in the creation, sponsorship or administration of CustodiedΒ | |
Β | Accounts or their relevant plans or involved in any other capacity with CustodiedΒ | |
Β | Accounts or their relevant plans ("Related Parties") to adopt, execute or otherwise agreeΒ | |
Β | to disclosure documents, custodial agreements, account agreements and such other forms,Β | |
Β | agreements and materials which it reasonably determines to be appropriate for theΒ | |
Β | establishment and administration of the Custodied Accounts or relevant plans underΒ | |
Β | applicable law, including the Code ("Account Documentation") or for the servicesΒ | |
Β | provided as custodian; andΒ | |
Β | ||
(iv)Β | The Custodian may directly furnish Account Documentation and all other writtenΒ |
Β
Page 7
Β | Β | notifications, materials and communications which it reasonably determines to beΒ |
Β | Β | appropriate to its role as custodian ("Related Custodian Materials") to Participants andΒ |
Β | Β | Related Parties and the Fund will upon the reasonable request of BNYM or the CustodianΒ |
Β | Β | coordinate joint mailings of Account Documentation and Related Custodian MaterialsΒ |
Β | Β | with Fund materials.Β |
Β | ||
Β | (D)Β | In consideration for BNYM or the Custodian furnishing any one or more of the servicesΒ |
Β | provided for in this Section 3(a)(12), whether alone or in combination with others, the Fund shallΒ | |
Β | pay to BNYM the related Fees and Reimbursable Expenses as set forth in the Fee Agreement.Β | |
Β | The Fund may direct BNYM to collect such Fees and Reimbursable Expenses from the assets inΒ | |
Β | relevant Tax Advantaged Accounts upon appropriate disclosure to Participants, but shall remainΒ | |
Β | responsible for such Fees and Reimbursable Expenses to the extent it does not so direct BNYM orΒ | |
Β | such amounts are not collectable from the Tax Advantaged Accounts.Β | |
Β | ||
(13)Β | Print Mail. The Fund hereby engages BNYM as its print/mail service provider with respect toΒ | |
those items and for such fees as may be agreed to from time to time in writing by the Fund and BNYM.Β | ||
Β | ||
(14)Β | National Quality Review. BNYM agrees to engage National Quality Review (βNQRβ) toΒ | |
perform NQR rating and quality performance review services with respect to BNYM transactionΒ | ||
processing and correspondence areas providing services to the Funds hereunder and provide quarterlyΒ | ||
reporting to the Funds relating thereto.Β | ||
Β | ||
(15)Β | Special Requirements With Respect To Daily Funding. BNYM shall provide the Custodian aΒ | |
preliminary cash availability report at 7:45AM (Eastern Time). The preliminary cash projections areΒ | ||
subject to change, based on estimates submitted by various processing groups. The report will summarizeΒ | ||
the previous day's transaction activity, subtotaled by transaction type. Final reports will be provided toΒ | ||
the Custodian by 10:45 AM (Eastern Time). This reporting package will include final cash availabilityΒ | ||
and shares outstanding for each Fund.Β | ||
Β | ||
Β | Providing that BNYM has reported the daily settlement amounts in a timely manner withΒ | |
appropriate back-up documentation, the Fund will cause to be wired monies due BNYM by the Fund onΒ | ||
or before the close of business. All monies due the Fund from BNYM shall be wired by BNYM by closeΒ | ||
of business.Β | ||
Β | ||
(16)Β | Other Services. BNYM shall provide other services that are further described and governed byΒ | |
Schedule D hereto. These other services are βAdvisorCentralβ, βIAMβ, and the β22c-2 Systemβ as thoseΒ | ||
terms are defined in Exhibit 1 to Schedule D.Β | ||
Β | ||
(17)Β | Ancillary Services. BNYM shall perform such other services ancillary in nature to the servicesΒ | |
described in this Section 3(a) and customarily performed by a transfer agent, registrar, dividendΒ | ||
disbursing agent and shareholder servicing agent.Β | ||
Β | ||
(b)Β | Anti-Money Laundering Program Services. BNYM will perform one or more of the servicesΒ | |
described in subsections (1) through (6) of this Section 3(b) if requested by the Fund ("AML Services").Β | ||
Β | ||
(1)Β | Anti-Money Laundering.Β | |
Β | ||
Β | (A) To the extent the other provisions of this Agreement require BNYM to establish, maintainΒ | |
Β | and monitor accounts of investors in the Fund consistent with the Securities Laws, BNYM shallΒ | |
Β | perform reasonable actions necessary to assist the Fund in complying with Section 352 of theΒ | |
Β | USA PATRIOT Act, as follows: BNYM shall: (a) establish and implement written internalΒ |
Β
Page 8
Β | policies, procedures and controls reasonably designed to help prevent the Fund from being usedΒ | |
Β | to launder money or finance terrorist activities; (b) provide for independent testing, by anΒ | |
Β | employee who is not responsible for the operation of BNYM's anti-money laundering ("AML")Β | |
Β | program or by an outside party, for compliance with BNYM's written AML policies andΒ | |
Β | procedures; (c) designate a person or persons responsible for implementing and monitoring theΒ | |
Β | operation and internal controls of BNYM's AML program; and (d) provide ongoing training ofΒ | |
Β | BNYM personnel relating to the prevention of money-laundering activities.Β | |
Β | ||
Β | (B)Β | Upon the reasonable request of the Fund, BNYM shall provide to the Fund: (x) a copy ofΒ |
Β | BNYM's written AML policies and procedures; (y) a copy of a written assessment or reportΒ | |
Β | prepared by the party performing the independent testing for compliance, or a summary thereof,Β | |
Β | or a certification that the findings of the independent party are satisfactory; and (z) a summary ofΒ | |
Β | the AML training provided for appropriate BNYM personnel.Β | |
Β | ||
Β | (C)Β | Without limiting or expanding subsections (A) or (B) above, the parties agree this SectionΒ |
Β | 3(b)(1) relates solely to Fund compliance with Section 352 of the USA PATRIOT Act and doesΒ | |
Β | not relate to any other obligation the Fund may have under the USA PATRIOT Act, includingΒ | |
Β | without limitation Section 326 thereof.Β | |
Β | ||
(2)Β | Foreign Account Due Diligence.Β | |
Β | ||
Β | (A)Β | To assist the Fund in complying with requirements regarding a due diligenceΒ |
Β | program for βforeign financial institutionβ accounts in accordance with applicableΒ | |
Β | regulations promulgated by U.S. Department of Treasury under Section 312 of the USAΒ | |
Β | PATRIOT Act ("FFI Regulations"), BNYM will do the following:Β | |
Β | ||
Β | (i)Β | Implement and operate a due diligence program that includes appropriate, specific,Β |
Β | Β | risk-based policies, procedures and controls that are reasonably designed to enableΒ |
Β | Β | the Fund to detect and report, on an ongoing basis, any known or suspected moneyΒ |
Β | Β | laundering activity conducted through or involving any correspondent accountΒ |
Β | Β | established, maintained, administered or managed by the Fund for a βforeignΒ |
Β | Β | financial institutionβ (as defined in 31 CFR 103.175(h))("Foreign FinancialΒ |
Β | Β | Institution");Β |
Β | ||
Β | (ii)Β | Conduct due diligence to identify and detect any Foreign Financial InstitutionΒ |
Β | Β | accounts in connection with new accounts and account maintenance;Β |
Β | ||
Β | (iii)Β | Assess the money laundering risk presented by each such Foreign FinancialΒ |
Β | Β | Institution account, based on a consideration of all appropriate relevant factors (asΒ |
Β | Β | generally outlined in 31 CFR 103.176), and assign a risk category to each suchΒ |
Β | Β | Foreign Financial Institution account;Β |
Β | ||
Β | (iv)Β | Apply risk-based procedures and controls to each such Foreign Financial InstitutionΒ |
Β | Β | account reasonably designed to detect and report known or suspected moneyΒ |
Β | Β | laundering activity, including a periodic review of the Foreign Financial InstitutionΒ |
Β | Β | account activity sufficient to determine consistency with information obtained aboutΒ |
Β | Β | the type, purpose and anticipated activity of the account;Β |
Β | ||
Β | (v)Β | Include procedures to be followed in circumstances in which the appropriate dueΒ |
Β | Β | diligence cannot be performed with respect to a Foreign Financial InstitutionΒ |
Β | Β | account;Β |
Β
Page 9
Β | (vi)Β | Adopt and operate enhanced due diligence policies for certain Foreign FinancialΒ |
Β | Β | Institution accounts in compliance with 31 CFR 103.176;Β |
Β | ||
Β | (vii)Β | Record due diligence program and maintain due diligence records relating toΒ |
Β | Β | Foreign Financial Institution accounts; andΒ |
Β | ||
Β | (viii)Β | Report to the Fund about measures taken under (i)-(vii) above.Β |
Β | ||
Β | (B)Β | Nothing in Section 3(b)(2) shall be construed to require BNYM to perform any course ofΒ |
Β | conduct that is not required for Fund compliance with the FFI Regulations.Β | |
Β | ||
Β | (C)Β | Without limiting or expanding subsections (A) or (B) above, the parties agree this SectionΒ |
3(b)(2) relates solely to Fund compliance with Section 312 of the USA PATRIOT Act and does not relateΒ | ||
to any other obligation the Fund may have under the USA PATRIOT Act, including without limitationΒ | ||
Section 326 thereof.Β | ||
Β | ||
(3)Β | Customer Identification Program.Β | |
Β | ||
Β | (A)Β | To assist the Fund in complying with requirements regarding a customer identificationΒ |
Β | program in accordance with applicable regulations promulgated by U.S. Department of TreasuryΒ | |
Β | under Section 326 of the USA PATRIOT Act ("CIP Regulations"), BNYM will do theΒ | |
Β | following:Β | |
Β | ||
Β | (i)Β | Implement procedures which require that prior to establishing a new account in the FundΒ |
Β | Β | BNYM obtain the name, date of birth (for natural persons only), address andΒ |
Β | Β | government-issued identification number (collectively, the "Data Elements") for theΒ |
Β | Β | "Customer" (defined for purposes of this Agreement as provided in 31 CFR 103.131)Β |
Β | Β | associated with the new account.Β |
Β | ||
Β | (ii)Β | Use collected Data Elements to attempt to reasonably verify the identity of each newΒ |
Β | Β | Customer promptly before or after each corresponding new account is opened. MethodsΒ |
Β | Β | of verification may consist of non-documentary methods (for which BNYM may useΒ |
Β | Β | unaffiliated information vendors to assist with such verifications) and documentaryΒ |
Β | Β | methods (as permitted by 31 CFR 103.131), and may include procedures under whichΒ |
Β | Β | BNYM personnel perform enhanced due diligence to verify the identities of CustomersΒ |
Β | Β | the identities of whom were not successfully verified through the first-level (which willΒ |
Β | Β | typically be reliance on results obtained from an information vendor) verificationΒ |
Β | Β | process(es).Β |
Β | ||
Β | (iii)Β | Record the Data Elements and maintain records relating to verification of new CustomersΒ |
Β | Β | consistent with 31 CFR 103.131(b)(3).Β |
Β | ||
Β | (iv)Β | Regularly report to the Fund about measures taken under (i)-(iii) above.Β |
Β | ||
Β | (v)Β | If BNYM provides services by which prospective Customers may subscribe for shares inΒ |
Β | Β | the Fund via the Internet or telephone, work with the Fund to notify prospectiveΒ |
Β | Β | Customers, consistent with 31 CFR 103.131(b)(5), about the program conducted by theΒ |
Β | Β | Fund in accordance with the CIP Regulations.Β |
Β
Page 10
Β | (B)Β | Nothing in Section 3(b)(3) shall be construed to require BNYM to perform any course ofΒ |
Β | conduct that is not required for Fund compliance with the CIP Regulations, including by way ofΒ | |
Β | illustration not limitation the collection of Data Elements or verification of identity forΒ | |
Β | individuals opening Fund accounts through financial intermediaries which use the facilities of theΒ | |
Β | National Securities Clearing Corporation.Β | |
Β | ||
(4)Β | FinCEN Requests Under USA PATRIOT Act Section 314(a). The Fund hereby engages BNYMΒ | |
to provide certain services as set forth in this subsection (b) with respect to FinCEN Section 314(a)Β | ||
information requests ("Information Requests") received by the Fund. Upon receipt by BNYM of anΒ | ||
Information Request delivered by the Fund in full compliance with all 314(a) Procedures (as definedΒ | ||
below), BNYM will compare appropriate information contained in the Information Request againstΒ | ||
relevant information contained in account records maintained for the Fund. Information relating toΒ | ||
potential matches resulting from these comparisons, after review by BNYM for quality assuranceΒ | ||
purposes ("Comparison Results"), will be made available to the Fund in a timely manner. The Fund willΒ | ||
retain responsibility for filing reports with FinCEN that may be appropriate based on the ComparisonΒ | ||
Results. In addition, a potential match involving a tax identification number will be analyzed by BNYMΒ | ||
in conjunction with other relevant activity contained in records for the particular relevant account, and if,Β | ||
after such analysis, BNYM determines that further investigation is warranted because the activity mightΒ | ||
constitute "suspicious activity", as that term is used for purposes of the USA Patriot Act, then BNYM willΒ | ||
deliver a suspicious activity referral to the Fund. "314(a) Procedures" means the procedures adoptedΒ | ||
from time to time by BNYM governing the delivery and processing of Information Requests transmittedΒ | ||
by BNYM's clients to BNYM, including without limitation requirements governing the timeliness,Β | ||
content, completeness, format and mode of transmissions to BNYM.Β | ||
Β | ||
(5)Β | U.S. Government List Matching Services.Β | |
Β | ||
Β | (A)Β | On a daily basis BNYM will compare Appropriate List Matching Data (asΒ |
Β | defined in subsection (C) below) contained in BNYM databases which are maintained forΒ | |
Β | the Fund pursuant to this Agreement ("Fund Data") to "U.S. Government Lists", whichΒ | |
Β | is hereby defined to mean the following:Β | |
Β | ||
Β | (i)Β | data promulgated in connection with the list of Specially Designated Nationals publishedΒ |
Β | Β | by the Office of Foreign Asset Control of the U.S. Department of the Treasury ("OFAC")Β |
Β | Β | and any other sanctions lists or programs administered by OFAC to the extent such listsΒ |
Β | or programs remain operative and applicable to the Fund ("OFAC Lists");Β | |
Β | ||
Β | (ii)Β | data promulgated in connection with the list of Non-Cooperative Countries andΒ |
Β | Territories ("NCCT List") published by the Financial Action Task Force;Β | |
Β | ||
Β | (iii)Β | data promulgated in connection with determinations by the Director (the "Director") ofΒ |
Β | Β | the Financial Crimes Enforcement Network of the U.S. Department of the Treasury that aΒ |
Β | Β | foreign jurisdiction, institution, class of transactions, type of account or other matter is aΒ |
Β | Β | primary money laundering concern ("PMLC Determination"); andΒ |
Β | ||
Β | (iv)Β | data promulgated in connection with any other lists, programs or determinations (A) ofΒ |
Β | Β | which BNYM notifies the Fund after determining it to be substantially similar in purposeΒ |
Β | Β | to any of the foregoing lists, programs or determinations, or (B) which BNYM and theΒ |
Β | Β | Fund agree in writing to add to the service described in this subsection (a). ComparisonsΒ |
Β | Β | to any list of which the Fund is notified pursuant to (A) may not be terminated withoutΒ |
Β | Β | advance notice to the Fund.Β |
Β
Page 11
Β | (B)Β | In the event that following a comparison of Fund Data to a U.S. Government ListΒ |
Β | as described in subsection (a) BNYM determines that any Fund Data constitutes aΒ | |
Β | "match" with the U.S. Government List in accordance with the criteria applicable to theΒ | |
Β | particular U.S. Government List, BNYM:Β | |
Β | ||
Β | (i)Β | will notify the Fund promptly of such match;Β |
Β | ||
Β | (ii)Β | will send any other notifications required by applicable law or regulation byΒ |
Β | Β | virtue of the match;Β |
Β | ||
Β | (iii)Β | if a match to an OFAC List, will to the extent required by applicable law orΒ |
Β | Β | regulation assist the Fund in taking appropriate steps to block any transactions orΒ |
Β | Β | attempted transactions to the extent such action may be required by applicableΒ |
Β | Β | law or regulation;Β |
Β | ||
Β | (iv)Β | if a match to the NCCT List or a PMLC Determination, will to the extentΒ |
Β | Β | required by applicable law or regulation conduct a suspicious activity review ofΒ |
Β | Β | accounts related to the match and if suspicious activity is detected will deliver aΒ |
Β | Β | suspicious activity referral to the Fund;Β |
Β | ||
Β | (v)Β | if a match to a PMLC Determination, will assist the Fund in taking theΒ |
Β | Β | appropriate special measures imposed by the Director; andΒ |
Β | ||
Β | (vi)Β | will assist the Fund in taking any other appropriate actions required by applicableΒ |
Β | Β | law or regulation.Β |
Β | ||
Β | (C)Β | "Appropriate List Matching Data" means (A) account registration and alternateΒ |
Β | payee data, to the extent made appropriate by statutes, rules or regulations governing theΒ | |
Β | U.S. Government Lists, (ii) data determined by BNYM in good faith in light of statutes,Β | |
Β | rules or regulations governing the U.S. Government Lists to be necessary to provide theΒ | |
Β | services described in this Section 3(b)(5), and (iii) data the parties agree in writing to beΒ | |
Β | necessary to provide the services described in this Section 3(b)(5).Β | |
Β | ||
(6)Β | Legal Process. The Fund hereby engages BNYM to provide certain services as set forth in thisΒ | |
subsection (6) with respect to legal process (civil and criminal subpoenas, civil or criminal seizure orders,Β | ||
IRS civil or criminal notices including notices of lien or levy, other functionally equivalent legal processΒ | ||
as the parties mutually agree) received by the Fund and furnished to BNYM Regulatory Management at aΒ | ||
time and in a manner affording BNYM Regulatory Management reasonable opportunity to act on itΒ | ||
("Legal Process"). The Fund shall have the sole and exclusive obligation to furnish the information,Β | ||
documentation or other material requested by the Legal Process but BNYM will assist the Fund inΒ | ||
complying with the Legal Process after reviewing appropriate customer account activity. In addition, ifΒ | ||
BNYM, after a review of the Legal Process and other pertinent account records, determines that suchΒ | ||
information could indicate "suspicious activity", then BNYM will deliver a suspicious activity referral toΒ | ||
the Fund.Β | Β | |
Β | ||
(7)Β | BNYM agrees to permit governmental authorities with jurisdiction over the Fund to conductΒ | |
examinations of the operations and records relating to the services performed by BNYM under thisΒ | ||
Section 3(b) upon reasonable advance request and during normal business hours and to furnish copies atΒ | ||
the Fund's cost and expense of information reasonably requested by the Fund or such authorities andΒ | ||
relevant to the services, subject to pre-approval by the Fund of any such cost or expense.Β |
Β
Page 12
(8)Β | For purposes of clarification: All Written Procedures relating to the services performed byΒ | |
BNYM pursuant to this Section 3(b) and any information, written matters or other recorded materialsΒ | ||
relating to such services and maintained by BNYM shall constitute Confidential Information of BNYM,Β | ||
except to the extent, if any, such materials constitute Fund records under the Securities Laws.Β | ||
Β | ||
(9)Β | The Fund is solely and exclusively responsible for determining the applicability to the Fund ofΒ | |
the Bank Secrecy Act, the USA PATRIOT Act, regulations of FinCEN, and all other laws andΒ | ||
regulations, as they may be constituted from time to time ("Fund Applicable Laws"), for complying withΒ | ||
the Fund Applicable Laws, for determining the extent to which the AML Services assist the Fund inΒ | ||
complying with the Fund Applicable Laws, and for furnishing any supplementation or augmentation toΒ | ||
the AML Services it determines to be appropriate, and acknowledges that BNYM has given no advice andΒ | ||
makes no representations with respect to such matters. Section 3(b) of the Agreement shall not beΒ | ||
construed to impose on BNYM any obligation other than to engage in the specific course of conductΒ | ||
specified by the provisions therein, and in particular shall not be construed to impose any other obligationΒ | ||
on BNYM to design, develop, implement, administer, or otherwise manage compliance activities of theΒ | ||
Fund. The services provided pursuant to this Section 3(b) may be changed at any time and from time toΒ | ||
time by BNYM in its reasonable sole discretion to include commercially reasonable provisionsΒ | ||
appropriate to the relevant requirements of the Fund Applicable Laws and the description of servicesΒ | ||
contained in Section 3 shall be deemed revised accordingly without written amendment pursuant toΒ | ||
Section 16(a), provided the Fund shall be notified of any such changes.Β | ||
Β | ||
(c)Β | Red Flags Services.Β | |
Β | ||
(1)Β | The Fund elects to receive, and BNYM agrees to provide, the Red Flags Services as describedΒ | |
below. This Section 3(c) of the Agreement is referred to as the "Red Flags Section".Β | ||
Β | ||
(2)Β | BNYM agrees, commencing as of the effective date of the Red Flags Requirements (as defined inΒ | |
Section 3(c)(3) below) or the Execution Date, whichever is later, to provide the Fund with the "Red FlagsΒ | ||
Services", which is hereby defined to mean the following services:Β | ||
Β | ||
(i)Β | BNYM will maintain written controls reasonably designed to detect the occurrence of Red FlagsΒ | |
Β | (as defined below) in connection with (i) account opening and other account activities andΒ | |
Β | transactions conducted directly through BNYM with respect to Direct Accounts (as definedΒ | |
Β | below), and (ii) transactions effected directly through BNYM by Covered Persons (as definedΒ | |
Β | below) in Covered Accounts (as defined below). Such controls, as they may be revised from timeΒ | |
Β | to time hereunder, are referred to herein as the "Controls". Solely for purposes of this Red FlagsΒ | |
Β | Section, the capitalized terms below will have the respective meaning ascribed to each:Β | |
Β | ||
Β | (A)Β | "Red Flag" means a pattern, practice, or specific activity or a combination of patterns,Β |
Β | Β | practices or specific activities which may indicate the possible existence of Identity TheftΒ |
Β | Β | (as defined below) affecting a Registered Owner (as defined below) or a Covered Person.Β |
Β | ||
Β | (B)Β | "Identity Theft" means a fraud committed or attempted using the identifying informationΒ |
Β | Β | of another person without authority.Β |
Β | ||
Β | (C)Β | "Registered Owner" means the owner of record of a Direct Account on the books andΒ |
Β | Β | records of the Fund maintained by BNYM as registrar of the Fund (the "FundΒ |
Β | Β | Registry").Β |
Β | ||
Β | (D)Β | "Covered Person" means the owner of record of a Covered Account on the FundΒ |
Β | Β | Registry.Β |
Β
Page 13
Β | (E)Β | "Direct Account" means an Account established directly with and through BNYM as aΒ |
Β | Β | registered account on the Fund Registry and through which the owner of record has theΒ |
Β | Β | ability to directly conduct account and transactional activity with and through BNYMΒ |
Β | ||
Β | (F)Β | "Covered Account" means an Account established by a financial intermediary forΒ |
Β | Β | another as the owner of record on the Fund Registry and through which such owner ofΒ |
Β | Β | record has the ability to conduct transactions in Fund shares directly with and throughΒ |
Β | Β | BNYM.Β |
Β | ||
Β | (G)Β | "Account" means (1) an account holding Fund Shares with respect to which a naturalΒ |
Β | Β | person is the owner of record, and (2) any other account holding Fund Shares withΒ |
Β | Β | respect to which there is a reasonably foreseeable risk to the particular account owner'sΒ |
Β | Β | customers from identity theft, including financial, operational, compliance, reputation, orΒ |
Β | Β | litigation risks.Β |
Β | ||
(ii)Β | BNYM will provide the Fund with a printed copy of or Internet viewing access to the Controls.Β | |
Β | ||
(iii)Β | BNYM will notify the Fund promptly of Red Flags which it detects and reasonably determines toΒ | |
Β | indicate a significant risk of Identity Theft to a Registered Owner or Covered Person ("PossibleΒ | |
Β | Identity Theft") and assist the Fund in determining the appropriate response of the Fund to theΒ | |
Β | Possible Identity Theft.Β | |
Β | ||
(iv)Β | BNYM will (A) engage an independent auditing firm or other similar firm of independentΒ | |
Β | examiners to conduct an annual evaluation of the Controls and issue a report on the results of theΒ | |
Β | testing (the "Audit Report"), and (B) furnish a copy of the Audit Report to the Company; andΒ | |
Β | ||
(v)Β | Upon Fund request, issue a certification in a form determined to be appropriate by BNYM in itsΒ | |
Β | reasonable discretion, certifying to BNYM's continuing compliance with the Controls after theΒ | |
Β | date of the most recent Audit Report.Β | |
Β | ||
(3)Β | The Fund agrees it is responsible for complying with and determining the applicability to theΒ | |
Fund of Section 114 of the Fair and Accurate Credit Transaction Act of 2003 and regulations promulgatedΒ | ||
thereunder (the "Red Flags Requirements"), for determining the extent to which the Red Flags ServicesΒ | ||
assist the Fund in complying with the Red Flags Requirements, and for furnishing any supplementation orΒ | ||
augmentation to the Red Flags Services it determines to be appropriate, and that BNYM has given noΒ | ||
advice and makes no representations with respect to such matters. This Red Flags Section shall not beΒ | ||
interpreted in any manner which imposes a duty on BNYM to act on behalf of the Fund or otherwise,Β | ||
including any duty to take any action upon the occurrence of a Red Flag, other than as expressly providedΒ | ||
for in this Red Flags Section. Upon reasonable advance written notice to the Fund, the Controls and theΒ | ||
Red Flags Services may be changed at any time and from time to time by BNYM in its reasonable soleΒ | ||
discretion to include commercially reasonable provisions appropriate to the Red Flags Requirements, asΒ | ||
they may be constituted from time to time. The Fund shall pay BNYM the fee for Red Flags Services asΒ | ||
established by BNYM in the Fee Agreement.Β | ||
Β | ||
(d)Β | Access To And Use Of The BNYM System. BNYM shall provide access and use to the BNYMΒ | |
System (as defined in Schedule D) and the terms of Schedule D shall apply thereto.Β | ||
Β | ||
4.Β | Confidentiality.Β |
Β
Page 14
(a)Β | Each party shall keep the Confidential Information (as defined in subsection (b) below) of theΒ |
other party in confidence and will not use or disclose or allow access to or use of such ConfidentialΒ | |
Information except in connection with the activities contemplated by this Agreement or as otherwiseΒ | |
expressly agreed in writing. Each party acknowledges that the Confidential Information of the disclosingΒ | |
party will remain the sole property of such party. In complying with the first sentence of this subsectionΒ | |
(a), each party will use the same degree of care it uses to protect its own confidential information, but inΒ | |
no event less than a commercially reasonable degree of care.Β | |
Β | |
(b)Β | Subject to subsections (c) and (d) below, "Confidential Information" means (i) this AgreementΒ |
and its contents, all compensation agreements, arrangements and understandings (including waivers)Β | |
respecting this Agreement, disputes pertaining to the Agreement, and information about a party's exerciseΒ | |
of rights hereunder, performance of obligations hereunder or other conduct of a party in connection withΒ | |
the Agreement (provided, however, that such information may be disclosed to a partyβs accountants,Β | |
auditors and attorneys who have a need to know and who provide services to it under professional orΒ | |
contractual obligations of confidentiality), (ii) information and data of, owned by or about a disclosingΒ | |
party or its affiliates, customers, or subcontractors that may be provided to the other party or becomeΒ | |
known to the other party in the course of the relationship established by this Agreement, regardless ofΒ | |
form or content, including but not limited to (A) competitively sensitive material, and not generallyΒ | |
known to the public, including, but not limited to, studies, plans, reports, surveys, summaries,Β | |
documentation and analyses, regardless of form, information about product plans, marketing strategies,Β | |
finances, operations, customer relationships, customer profiles, customer lists, sales estimates, businessΒ | |
plans, and internal performance results relating to the past, present or future business activities of theΒ | |
Company or BNYM, their respective subsidiaries and Affiliates and the customers, clients and suppliersΒ | |
of any of them; (B) scientific, technical or technological information, a design, process, procedure,Β | |
formula, or improvement that is commercially valuable and secret in the sense that its confidentialityΒ | |
affords the Company or BNYM a competitive advantage over its competitors; (C) a confidential orΒ | |
proprietary concept, documentation, report, data, specification, computer software, source code, objectΒ | |
code, flow chart, database, invention, know how, trade secret, whether or not patentable or copyrightable;Β | |
(D) information related to security, disaster recovery, business continuity and any other operational plans,Β | |
procedures, practices and protocols, and (E) anything designated as confidential, and (iii) to any extentΒ | |
not included within clause (i) or clause (ii) above, with respect to BNYM, the Proprietary Items (asΒ | |
defined in Schedule D).Β | |
Β | |
(c) Information or data that would otherwise constitute Confidential Information under subsection (b)Β | |
above shall not constitute Confidential Information to the extent it:Β | |
Β | |
(i)Β | is already known to the receiving party at the time it is obtained;Β |
(ii)Β | is or becomes publicly known or available through no wrongful act of the receiving party;Β |
(iii)Β | is rightfully received from a third party who, to the receiving partyβs knowledge, is not under aΒ |
Β | duty of confidentiality;Β |
(iv)Β | is released by the protected party to a third party without restriction; orΒ |
(v)Β | has been or is independently developed or obtained by the receiving party without reference toΒ |
Β | the Confidential Information provided by the protected party.Β |
Β | |
(d)Β | Confidential Information of a disclosing party may be used or disclosed by the receiving party inΒ |
the circumstances set forth below but except for such permitted use or disclosure shall remainΒ | |
Confidential Information subject to all applicable terms of this Agreement:Β | |
Β | |
(i)Β | as appropriate in connection with activities contemplated by this Agreement;Β |
Β
Page 15
(ii)Β | as required pursuant to a court order, subpoena, governmental or regulatory or self-regulatoryΒ |
Β | authority or agency, law, regulation, or binding discovery request in pending litigation (providedΒ |
Β | the receiving party will provide the other party written notice of such requirement, to the extentΒ |
Β | such notice is permitted, and subject to proper jurisdiction, if applicable). The PartiesΒ |
Β | acknowledge that the Investment Company is required to include this Agreement (and anyΒ |
Β | amendments hereto), but not any fee schedules, as an exhibit to its registration statement andΒ |
Β | intends to do so;Β |
Β | |
(iii)Β | as requested by a governmental, regulatory or self-regulatory authority or agency or independentΒ |
Β | third party (such as the Investment Companyβs independent public accounting firm) in connectionΒ |
Β | with an inquiry, examination, audit or other review; orΒ |
Β | |
(iv)Β | the information or data is relevant and material to any claim or cause of action between theΒ |
Β | parties or the defense of any claim or cause of action asserted against the receiving party.Β |
Β | |
(e)Β | Subject to the exceptions in (d), each party agrees not to publicly disseminate ConfidentialΒ |
Information of the other party or mutual Confidential Information.Β | |
Β | |
(f)Β | The provisions of this Section 4 shall survive termination of this Agreement for a period of threeΒ |
(3) years after such termination.Β | |
Β | |
5.Β | Privacy.Β |
Β | |
(a)Β | Each party hereto acknowledges and agrees that, subject to the reuse and re-disclosure provisionsΒ |
of Rexxxxxxxx X-X, 00 XXX Xart 248.11, it shall not disclose the non-public personal information ofΒ | |
investors in the Fund obtained under this Agreement, except disclosures in connection with carrying outΒ | |
the services set forth in this Agreement or as otherwise permitted by law or regulation. BNYM agrees toΒ | |
implement and maintain appropriate security measures to protect "personal information", as that term isΒ | |
defined in 201 CMR 17.00: Standards For The Protection Of Personal Information Of Residents Of TheΒ | |
Commonwealth ("Massachusetts Privacy Regulation"), consistent with the Massachusetts PrivacyΒ | |
Regulation and any applicable federal regulations. Should additional privacy requirements be adopted byΒ | |
the states, BNYM agrees to develop, if applicable, appropriate security measures to satisfy such privacyΒ | |
requirements which shall be implemented upon the mutual agreement of the parties hereto as to theΒ | |
compensation ( if any) to be paid to BNYM.Β | |
Β | |
(b)Β | BNYM agrees that it shall promptly notify the Fund once it has determined that any securityΒ |
breach involving possible unauthorized disclosure of or access to personal information related to the FundΒ | |
has occurred. Without limiting the remedies available to the Fund, should BNYM fail to report, or takeΒ | |
reasonable measures to resolve such a security breach, such failure shall be deemed to be a materialΒ | |
breach of this Agreement. BNYM agrees that this paragraph shall cover any of its affiliates,Β | |
subcontractors or agents that obtains access to personal information related to the Fund under thisΒ | |
Agreement, and that BNYM will be liable to the Fund for the compliance of such persons with thisΒ | |
provision. This paragraph will survive termination or expiration of the Agreement for so long as BNYMΒ | |
continues to possess or have access to personal information related to the Fund.Β | |
Β | |
6.Β | Cooperation with Accountants. BNYM shall cooperate with the independent publicΒ |
accountants for the Fund and shall take commercially reasonable measures to furnish or to make availableΒ | |
to such accountants information relating to this Agreement and BNYM's performance of the obligationsΒ | |
hereunder as requested by such accountants and necessary for the expression of their opinion.Β |
Β
Page 16
7.Β | Ownership Rights. Ownership rights to property utilized in connection with the parties' use ofΒ | |
the BNYM System shall be governed by applicable provisions of Schedule D which are herebyΒ | ||
incorporated by reference into this Section 7, and shall apply, as if fully set forth herein.Β | ||
Β | ||
8.Β | Disaster Recovery. BNYM shall enter into and shall maintain in effect with appropriate partiesΒ | |
one or more agreements making reasonable provisions for emergency use of electronic data processingΒ | ||
equipment to the extent appropriate equipment is available. In the event of equipment failures, BNYMΒ | ||
shall, at no additional expense to the Fund, take reasonable steps to minimize service interruptions.Β | ||
BNYM shall have no liability with respect to the loss of data or service interruptions caused by equipmentΒ | ||
failure, provided such loss or interruption is not caused by BNYM's own intentional misconduct, bad faithΒ | ||
or reckless disregard in the performance of its duties under this Agreement and it maintains and acts inΒ | ||
accordance with its business continuity plan, which it shall make available to the Fund (in full orΒ | ||
summary form) upon reasonable request.Β | ||
Β | ||
Β | (a)Β | Disaster Recovery Facility Services.Β |
Β | ||
Β | (i)Β | In the event an unplanned condition renders the Fundβs normal operations facility locatedΒ |
Β | at Two International Place, Boston, Massachusetts to be inoperative (a βDisasterβ), BNYM agreesΒ | |
Β | to provide certain services on behalf of the Fund, as more fully described herein.Β | |
Β | ||
Β | (ii)Β | Upon notification by the Fund to BNYM of a Disaster, BNYM shall make available toΒ |
Β | the Fund the equipment and services at a BNYM facility in either Westborough or at such otherΒ | |
Β | BNYM facility in New England as described in the attached Schedule E of this Agreement.Β | |
Β | ||
9.Β | Compensation.Β | |
Β | ||
(a)Β | As compensation for services rendered by BNYM during the term of this Agreement, the FundΒ | |
will pay to BNYM such fees and charges (the "Fees") as may be agreed to from time to time in writing byΒ | ||
the Fund and BNYM (the "Fee Agreement"). In addition, the Fund agrees to pay, and will be billedΒ | ||
separately in arrears for, reasonable expenses incurred by BNYM in the performance of its dutiesΒ | ||
hereunder ("Reimbursable Expenses").Β | ||
Β | ||
(b)Β | BNYM may establish demand deposit accounts or cash management accounts in its own name forΒ | |
the benefit of the Fund at third party financial institutions which is qualified to serve as a custodian inΒ | ||
accordance with Section 17(f) of the 1940 Act ("Third Party Institution"), including without limitationΒ | ||
Third Party Institutions that may be an affiliate of BNYM ("Affiliated Third Party Institutions") or aΒ | ||
client of BNYM, for the purpose of administering funds received by BNYM in the course of performingΒ | ||
its services hereunder (βService Accountsβ). In connection with the Service Accounts, the CompanyΒ | ||
acknowledges that one or more or a combination of one or more of the following may apply:Β | ||
Β | ||
(i)Β | BNYM may receive (i) earnings from sweeping certain funds in the Service Accounts overnightΒ | |
Β | into investment accounts or bank accounts at Third Party Institutions; and (ii) balance credits withΒ | |
Β | respect to the funds in the Service Accounts not swept as described in clause (i). On a monthlyΒ | |
Β | basis, BNYM may offset Banking Charges (as defined below) posed on the Service Accounts byΒ | |
Β | the Third Party Institutions (which are passed to the Fund) with imputed balance creditsΒ | |
Β | calculated on average balances held in the Service Accounts without reduction for amounts thatΒ | |
Β | might be swept as described in clause (i). The Fund shall be obligated to pay BNYM checkΒ | |
Β | clearing charges as disclosed in the Fee Agreement and BNYM may retain for its own accountΒ | |
Β | any sweep earnings and balance credits received from Third Party Institutions with respect to theΒ | |
Β | Service Accounts. "Banking Charges" means the bank charges and bank service fees imposedΒ | |
Β | by Third Party Institutions for the establishment and maintenance of the Fund's Service AccountΒ |
Β
Page 17
Β | and related banking services.Β |
Β | |
(ii)Β | BNYM may establish Service Accounts primarily or exclusively with Affiliated Third PartyΒ |
Β | Institutions and retain funds primarily or exclusively in the Service Accounts at Affiliated ThirdΒ |
Β | Party Institutions. BNYM and its Affiliated Third Party Institutions may derive a benefit fromΒ |
Β | the funds placed on deposit with the Affiliated Third Party Institutions in Service Accounts due toΒ |
Β | the availability of the funds for use by the Affiliated Third Party Institutions in their business. InΒ |
Β | the event an Affiliated Third Party Institution does not issue or pay balance credits or otherΒ |
Β | credits or earnings on funds in the Service Accounts, BNYM will calculate for each calendarΒ |
Β | month an "Imputed Account Credit", which is hereby defined to be the amount determined byΒ |
Β | multiplying (i) the average daily balance in the Fund's Service Account during the relevantΒ |
Β | month, times (ii) the number of days in the month divided by 365, times (iii) the 3-monthΒ |
Β | Treasury Xxxx rate for secondary markets for the relevant month as reported by the Board ofΒ |
Β | Governors of the Federal Reserve System at its Web site. BNYM shall pay the Banking ChargesΒ |
Β | on the Service Accounts for the relevant month, except for check clearing charges as disclosed inΒ |
Β | the Fee Agreement.Β |
Β | |
(c)Β | In connection with BNYM's performance of cash settlement and other cash administrationΒ |
services, the Fund acknowledges and agrees:Β | |
Β | |
(i)Β | that in order to satisfy a Fund's same day settlement obligations with the NSCC or to satisfy anyΒ |
Β | other another payment obligation of the Fund, BNYM may have to transfer out of a Fund'sΒ |
Β | Service Account an amount of funds which exceeds the amount of funds then available forΒ |
Β | transfer in the relevant Service Account ("Overdraft Amount");Β |
Β | |
(ii)Β | that BNYM is not obligated to transfer out of a Fund's Service Accounts any funds representingΒ |
Β | Overdraft Amounts and may in its sole discretion decline without liability hereunder to transferΒ |
Β | out of a Fund Service Account funds representing Overdraft Amounts;Β |
Β | |
(iii)Β | that notwithstanding the absence of an obligation to do so, BNYM may elect to transfer out ofΒ |
Β | the Fund's Service Accounts funds representing Overdraft Amounts as a courtesy to a Fund andΒ |
Β | to maintain BNYM's good standing with the NSCC and other participants in the financialΒ |
Β | services industry and that by electing to transfer funds representing Overdraft Amounts BNYMΒ |
Β | does not, even if it has transferred such funds as part of a regular pattern of conduct, waive anyΒ |
Β | rights under this Section 9(c) or assume the obligation it has expressly disclaimed in clause (ii)Β |
Β | above and BNYM may at any time in its sole discretion and without notice decline to continueΒ |
Β | to make such transfers;Β |
Β | |
(iv)Β | that the Fund is at all times obligated to pay to BNYM an amount of money equal to theΒ |
Β | Overdraft Amounts that have not been offset by credits posted to the relevant Service AccountΒ |
Β | subsequent to the transfer of the Overdraft Amount and such amounts are payable, and shall beΒ |
Β | paid, by the Fund immediately upon demand by BNYM.Β |
Β | |
(d)Β | The undersigned hereby represents and warrants to BNYM that (i) the terms of this Agreement,Β |
(ii) the fees and expenses associated with this Agreement, and (iii) any benefits accruing to BNYM or toΒ | |
the adviser or sponsor to the Fund in connection with this Agreement, including but not limited to any feeΒ | |
waivers, conversion cost reimbursements, up front payments, signing payments or periodic paymentsΒ | |
made or to be made by BNYM to such adviser or sponsor or any affiliate of the Fund relating to theΒ | |
Agreement have been fully disclosed to the Board of Directors of the Fund and that, if required byΒ | |
applicable law, such Board of Directors has approved or will approve the terms of this Agreement, anyΒ | |
such fees and expenses, and any such benefits.Β |
Β
Page 18
(e)Β | No termination of this Agreement shall cause, and no provision of this Agreement shall beΒ |
interpreted in any manner that would cause, BNYM's right to receive payment of its fees and charges forΒ | |
services actually performed hereunder, and Fund's obligation to pay such fees and charges, to be barred,Β | |
limited, abridged, conditioned, reduced, abrogated, or subject to a cap or other limitation or exclusion ofΒ | |
any nature.Β | |
Β | |
(f)Β | To the extent that any service or course of conduct of BNYM or the Custodian providedΒ |
hereunder is configured or performed as it is in whole or in part due to parameters set forth in ShareholderΒ | |
Materials, standards imposed by clearing corporations or other industry-wide service bureaus orΒ | |
organizations, Fund policies or laws, rules or regulations in effect on the Effective Date and due to new orΒ | |
amended provisions of any of the foregoing after the Effective Date BNYM or the Custodian develops,Β | |
implements or provides significantly modified, different, or new processes, procedures, resources orΒ | |
functionalities to perform such service or course of conduct or to perform a related new service or courseΒ | |
of conduct, BNYM shall be entitled to fees appropriate for such processes, procedures, resources orΒ | |
functionalities or as mutually agreed in writing by the parties.Β | |
Β | |
(g)Β | In the event the Investment Company or any Fund or Portfolio of the Investment Company isΒ |
liquidated, ceases operations, dissolves or otherwise winds down operations ("Dissolution Event") andΒ | |
effects a final distribution to shareholders (a "Final Distribution"), the Investment Company and eachΒ | |
relevant Fund shall be responsible for paying to BNYM all fees and reimbursing BNYM for allΒ | |
reasonable expenses associated with services to be provided by BNYM following the Final Distribution,Β | |
whether provided pursuant to a specific request of the Investment Company or the Fund or provided byΒ | |
BNYM due to industry standards or due to obligations under applicable law or regulation by virtue of theΒ | |
services previously performed for the Investment Company or the Fund ("Final Expenses"). InΒ | |
connection with the foregoing, the Investment Company or the relevant Fund shall (i) notify BNYM asΒ | |
promptly as practicable following first approval of the Dissolution Event or any aspect of the DissolutionΒ | |
Event by its Board of Directors or Trustees, as appropriate, and furnish BNYM with copies of allΒ | |
materials filed with the SEC or distributed to shareholders related thereto, (ii) calculate, set aside, reserveΒ | |
and withhold from the Final Distribution all amounts necessary to pay the Final Expenses and shall notifyΒ | |
BNYM as far in advance as practicable of any deadline for submitting materials appropriate or necessaryΒ | |
for the determination of such amounts, and (iii) provide sufficient staff or other accommodations toΒ | |
ensure timely payment of Final Expenses as they come due.Β | |
Β | |
10.Β | Instructions.Β |
Β | |
(a)Β | Unless the terms of this Agreement or Written Procedures expressly provide, in the reasonableΒ |
discretion of BNYM, all requisite details and directions for it to take a specific course of conduct, BNYMΒ | |
may, prior to engaging in a course of conduct on a particular matter, require the Fund to provide it withΒ | |
Written Instructions with respect to the matter. BNYM's obligation to engage in a course of conductΒ | |
pursuant to the Written Instructions so provided by the Fund shall be determined exclusively by theΒ | |
further provisions of this Section 10. BNYM shall be obligated to engage in a particular course ofΒ | |
conduct pursuant to communications received from the Fund other than those described in the twoΒ | |
immediately preceding sentences only if the communication constitutes a Written Instruction and only toΒ | |
the extent provided for in the further provisions of this Section 10.Β | |
Β | |
(b)Β | Whether received from the Fund in response to a request described in Section 10(a) or otherwise,Β |
BNYM shall be obligated to act only on "Standard Instructions", which is hereby defined to mean (i)Β | |
Instructions it receives which direct a course of conduct substantially similar in all material respects to aΒ | |
course of conduct provided for in Written Procedures, or (ii) if Written Procedures provide for a particularΒ | |
form of instructions to be used in connection with a matter ("Standard Instruction Form"), InstructionsΒ |
Β
Page 19
it receives on the Form or conforming in all material respects to the Form in the BNYM's sole judgment.Β | |
Β | |
(c)Β | BNYM may in its sole discretion decline to follow any course of conduct contained in anΒ |
Instruction that is not a Standard Instruction (such course of conduct being a "Non-StandardΒ | |
Instruction") for a bona fide legal, commercial or business reason ("Bona Fide Reason"), including byΒ | |
way of example and not limitation the following: (i) the course of conduct is not consistent or compliantΒ | |
with, is in conflict with, or requires a deviation from an Industry Standard, (ii) the course of conduct is notΒ | |
reasonably necessary or appropriate to or consistent with the services contemplated by this Agreement,Β | |
(iii) the course of conduct requires a deviation from or conflicts or is inconsistent with WrittenΒ | |
Procedures, (iv) the course of conduct is in conflict or inconsistent with or violates a law, rule, regulation,Β | |
or order or legal process of any nature, (v) the course of conduct is in conflict or inconsistent with or willΒ | |
violate a provision of this Agreement, constitutes a unilateral amendment of the Agreement or a materialΒ | |
change to a service, or (vi) the course of conduct imposes on BNYM a risk, liability or obligation notΒ | |
contemplated by this Agreement, including without limitation sanction or criticism of a governmental,Β | |
regulatory or self-regulatory authority, civil or criminal action, a loss or downgrading of membership,Β | |
participation or access rights or privileges in or to organizations providing common services to theΒ | |
financial services industry, out-of-pocket costs and expenses the Fund does not agree to reimburse,Β | |
requires performance of a course of conduct customarily performed pursuant to a separate service or feeΒ | |
agreement, requires a material increase in required resources, or is reasonably likely to result in aΒ | |
diversion of resources, disruption in established work flows, course of operations or implementation ofΒ | |
controls, or (vii) BNYM lacks sufficient information, analysis or legal advice to determine that theΒ | |
conditions in clauses (iv) and (vi) do not exist. In the event that BNYM declines to follow a Non-Β | |
Standard Instruction for any reason (including those included in the foregoing examples), it willΒ | |
immediately notify the Fund and work cooperatively with the Fund to resolve the matter.Β | |
Β | |
(d)Β | Notwithstanding the right reserved to BNYM by subsection (c) above:Β |
Β | |
(i)Β | BNYM may in good faith consider implementing a Non-Standard Instruction if the Fund agreesΒ |
Β | in a prior Written Instructions to reimburse BNYM for: the costs and expenses incurred inΒ |
Β | consulting with and obtaining the opinions or other work product of technical specialists, legalΒ |
Β | counsel or other third party advisors, consultants or professionals reasonably considered byΒ |
Β | BNYM to be appropriate to fully research, develop and implement the policies, procedures,Β |
Β | operational structure and controls required to perform the Non-Standard Instruction ("ExternalΒ |
Β | Research"), the costs and expenses associated with utilizing or expanding internal resources toΒ |
Β | research, develop and implement the policies, procedures, operational structure and controlsΒ |
Β | required to perform the Non-Standard Instruction ("Internal Research", and together with theΒ |
Β | External Research, the "Research"), and the fees and charges reasonably established by BNYMΒ |
Β | for performing the Non-Standard Instruction following its implementation. The Fund may, inΒ |
Β | place of agreeing to reimburse BNYM for the costs of Research, agree in such writtenΒ |
Β | authorization to provide BNYM at the Fund's cost and expense with all Research reasonablyΒ |
Β | requested by BNYM.Β |
Β | |
(ii)Β | Following receipt of all requested Research, BNYM may, in its sole discretion, as anΒ |
Β | accommodation and not pursuant to any obligation, agree to follow a Non-Standard Instruction ifΒ |
Β | it subsequently receives a Written Instruction containing terms satisfactory to it in its soleΒ |
Β | discretion, including without limitation terms constituting additional agreements with respect toΒ |
Β | fees, charges, and expenses, terms constituting appropriate warranties, representations andΒ |
Β | covenants, terms specifying with reasonable particularity the course of conduct constituting theΒ |
Β | Non-Standard Instruction and a provision providing for greater indemnification rights thanΒ |
Β | provided for in the Agreement.Β |
Β
Page 20
(iii)Β | BNYM reserves the right following receipt of all External Research and Internal Research andΒ |
Β | notwithstanding such receipt to continue to decline to perform the Non-Standard Instruction for aΒ |
Β | Bona Fide Reason.Β |
Β | |
(e)Β | BNYM will also not be obligated to act on any Instruction with respect to which it has reasonableΒ |
uncertainty about the meaning of the Instruction or which appears to conflict with another Instruction.Β | |
BNYM will advise the Fund by 6:00 PM (Eastern Time) on the same business day as the InstructionsΒ | |
were received, if such Instructions were received prior to 4:00 PM (Eastern Time), if it has uncertaintyΒ | |
about the meaning of an Instruction or if it appears to conflict with another Instruction, but BNYM willΒ | |
have no liability for any delay between issuance of the initial Instruction and its receipt of a clarifyingΒ | |
Instruction.Β | |
Β | |
(f)Β | In addition to any other provision of this Agreement that may be applicable to a particular Instruction,Β |
BNYM may include in a form of instruction constituting a Standard Instruction, in addition to appropriate functionalΒ | |
terms and provisions, representations and covenants that BNYM reasonably believes to be appropriate (i) toΒ | |
establish the authority of the issuing person, (ii) due to its role as an agent of a Fund, or (iii) due to obligationsΒ | |
imposed on it by law, regulation, or governmental, regulatory or self-regulatory authority by virtue of acting as anΒ | |
agent of a Fund. In addition, BNYM may require third parties who purport to be authorized, or who theΒ | |
Fund indicates has been authorized, to act on behalf of or for the benefit of the Fund in connection withΒ | |
this Agreement to execute an instrument containing indemnification terms, representations and covenantsΒ | |
as BNYM may reasonably require prior to accepting the authority of the persons to so act or prior toΒ | |
engaging in a course of conduct with them.Β | |
Β | |
(g)Β | BNYM shall not be under any duty or obligation to inquire into and shall not be liable for theΒ |
validity or invalidity, authority or lack thereof, truthfulness or accuracy or lack thereof, or genuineness orΒ | |
lack thereof of any Instruction, direction, notice, instrument or other information or communication fromΒ | |
the Fund which BNYM reasonably believes to have been given by an Authorized Person of the FundΒ | |
("Fund Communication"). BNYM shall have no liability for engaging in a course of conduct inΒ | |
accordance with any of the foregoing provided it otherwise acts in compliance with the Agreement.Β | |
BNYM shall be entitled to rely upon any Instruction it receives from an Authorized Person or from aΒ | |
person BNYM reasonably believes to be an Authorized Person relating to this Agreement. BNYM mayΒ | |
assume that any Instruction received hereunder is not in any way inconsistent with the provisions ofΒ | |
organizational documents of the Fund, rules and regulations applicable to the Fund or of any vote,Β | |
resolution or proceeding of the Fund's Board of Trustees or of the Fund's shareholders.Β | |
Β | |
(h)Β | BNYM may, in its discretion, decline to accept Oral Instructions with respect to a particularΒ |
matter under this Agreement and may require Written Instructions before engaging in a course of conductΒ | |
with respect to a particular matter under this Agreement. In the event BNYM accepts Oral Instructions,Β | |
the Fund agrees as a condition to BNYM's acceptance of the Oral Instructions, should WrittenΒ | |
Instructions confirming Oral Instructions not be provided, BNYM's memorialization of the OralΒ | |
Instructions shall be conclusively presumed to be the controlling.Β | |
Β | |
(i)Β | In the event facts, circumstances, or conditions exist or events occur, other than due to a breachΒ |
by BNYM of its Standard of Care, including without limitation situations contemplated by Section 10(e),Β | |
and BNYM reasonably determines that it must take a course of conduct in response to such situation andΒ | |
must receive an Instruction from the Fund to direct its conduct, and BNYM so notifies the Fund, and theΒ | |
Fund fails to furnish adequate Instructions or unreasonably delays furnishing adequate InstructionsΒ | |
("Response Failure"):Β | |
Β | |
(i)Β | BNYM will first endeavor to utilize internal resources to determine the appropriate course ofΒ |
Β | conduct in response to the situation but will be entitled, subject to reasonable notice to the FundΒ |
Β | and only thereafter at the Fund's sole cost and expense, to consult with legal counsel or other thirdΒ |
Β
Page 21
Β | parties reasonably determined by BNYM to be appropriate to determine the appropriate course ofΒ |
Β | conduct and the Fund will reimburse BNYM for out-of-pocket expenses so incurred upon beingΒ |
Β | invoiced for same; andΒ |
Β | |
(ii)Β | BNYM may implement a course of conduct on behalf of the Fund and BNYM will have all rightsΒ |
Β | hereunder with respect to such course of conduct as if such course of conduct was taken pursuantΒ |
Β | to and contained in Written Instructions. The Fund will pay BNYM all fees reasonably chargedΒ |
Β | by BNYM, if any, for engaging in the particular course of conduct and reimburse BNYM for allΒ |
Β | reasonably related out-of-pocket expenses incurred upon being invoiced for same.Β |
Β | |
11.Β | Terms Relating to Liability.Β |
Β | |
(a)Β | BNYM shall be liable to the Fund (or any person or entity claiming through the Fund) for LossΒ |
the recovery of which is not otherwise excluded by another provision of this Agreement only to the extentΒ | |
the Loss is caused by BNYMβs negligence, willful misconduct or bad faith in the performance of itsΒ | |
duties under this Agreement ("Standard of Care"). In the absence of a finding by a court of competentΒ | |
jurisdiction to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for theΒ | |
purchase of Shares shall be presumed not to have been a failure of BNYM to meet its Standard of Care.Β | |
Β | |
(b)Β | Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party norΒ |
its Affiliates shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption orΒ | |
loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance,Β | |
whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measuresΒ | |
(including in the case of BNYM compliance with its business continuity plan) is beyond its reasonableΒ | |
control, including without limitation: natural disasters, such as floods, hurricanes, tornados, earthquakesΒ | |
and wildfires; epidemics; action or inaction of civil or military authority; war, terrorism, riots orΒ | |
insurrection; criminal acts; job action by organized labor; interruption, loss or malfunction of utilities,Β | |
transportation, computer or communications capabilities; non-performance by third parties (other thanΒ | |
subcontractors of BNYM for causes other than those described herein); or functions or malfunctions ofΒ | |
the internet, firewalls, encryption systems or security devices caused by any of the foregoing (all and anyΒ | |
of the foregoing being an "Event Beyond Reasonable Control") . Upon the occurrence of an EventΒ | |
Beyond Reasonable Control, the affected Party shall be excused from any non-performance caused by theΒ | |
Event Beyond Reasonable Control (i) for so long as the Event Beyond Reasonable Control or damagesΒ | |
caused by it prevail and (ii) such party continues to use commercially reasonable efforts to attempt toΒ | |
perform the obligation so impacted.Β | |
Β | |
(c)Β | In no event shall BNYM or its affiliates, or any of its or their directors, officers, employees,Β |
agents or subcontractors, be liable for any consequential, incidental, exemplary, punitive, special orΒ | |
indirect damages, whether or not the likelihood of such damages was or should have been known orΒ | |
foreseeable by BNYM or its affiliates, and regardless of whether any entity has been advised of theΒ | |
possibility of such damages; except that in the event of any conflict between this Section 11(d) and theΒ | |
terms of Schedule H ("As Of" Procedures), the terms of Schedule H shall prevail. The foregoingΒ | |
limitation on liability shall not apply to damages to the extent arising from the bad faith, intentionalΒ | |
misconduct or gross negligence of BNYM. For purposes of clarification: no other provision of thisΒ | |
agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in partΒ | |
over this Section 11(d).Β | |
Β | |
(d)Β | Each party shall have a duty to mitigate damages for which the other party may becomeΒ |
responsible.Β |
Β
Page 22
(e)Β | With respect to securities data, information and research furnished to BNYM by third parties andΒ | |
included in the BNYM System ("Securities Data"), Company acknowledges that BNYM and such thirdΒ | ||
parties make no warranty concerning the Securities Data and BNYM disclaims all responsibility for theΒ | ||
Securities Data, including its content, accuracy, completeness, availability or timeliness of delivery, andΒ | ||
BNYM shall not be liable for Loss caused by Securities Data not being provided to it with the content andΒ | ||
at the time which is standard for the industry or which is required for performance of any service providedΒ | ||
for herein, including without limitation performance of the Licensed Services (as defined in Schedule D)Β | ||
and other BNYM services provided for in Schedule D. For clarification, this Section 11(e) is notΒ | ||
intended, and shall not be interpreted, to restrict or abrogate in any manner rights that Company may haveΒ | ||
against such third parties under agreements or otherwise, and such third parties shall not be third partyΒ | ||
beneficiaries of this Section 11(e).Β | ||
Β | ||
(f)Β | This Section 11 shall survive termination of this Agreement.Β | |
Β | ||
12.Β | Indemnification.Β | |
Β | ||
Β | (a)Β | Β Β Β Β Β The Fund will indemnify, defend and hold harmless BNYM, and its affiliates inΒ |
connection with services provided hereunder, and the respective directors, trustees, officers, agents andΒ | ||
employees of each, from and against any and all Losses, resulting from any Claim not resulting from theΒ | ||
willful misconduct, bad faith or negligence of BNYM (or of any agent of BNYM, including withoutΒ | ||
limitation, a sub-transfer agent contemplated hereby), and arising out of, or in connection with, its dutiesΒ | ||
on behalf of the Fund hereunder. In addition, the Fund will indemnify, defend and hold harmless BNYM,Β | ||
and its affiliates in connection with services provided hereunder, and the respective directors, trustees,Β | ||
officers, agents and employees of each, from and against any and all Losses resulting from any Claim as aΒ | ||
result of: (i) any action taken in accordance with Written or Oral Instructions, or share certificatesΒ | ||
reasonably believed by BNYM to be genuine and to be signed, countersigned or executed, or orallyΒ | ||
communicated by an Authorized Person; (ii) any action taken in accordance with written or oral adviceΒ | ||
reasonably believed by BNYM to have been given by counsel for the Fund; or (iii) any action taken as aΒ | ||
result of any error or omission in any record which BNYM had no reasonable basis to believe wasΒ | ||
inaccurate (including but not limited to magnetic tapes, computer printouts, hard copies and microfilmΒ | ||
copies) and was delivered, or caused to be delivered, by the Fund to BNYM in connection with thisΒ | ||
Agreement. This Section 12(a) shall survive termination of this Agreement.Β | ||
Β | ||
Β | (b)Β | Β Β Β Β BNYM will indemnify, defend and hold harmless the Fund and its respective directors,Β |
trustees, officers, agents and employees against and from any and all Losses resulting from any ClaimΒ | ||
resulting from the willful misconduct, bad faith or negligence of BNYM in performing its dutiesΒ | ||
hereunder, or arising out of, or in connection with, BNYMβs material breach of this Agreement. ThisΒ | ||
Section 12(b) shall survive termination of this Agreement.Β | ||
Β | ||
Β | (c)Β | Β Β Β Β In any case in which a party may be asked to indemnify or hold the other party harmless,Β |
the indemnifying party shall be advised of all pertinent facts concerning the situation in question and theΒ | ||
party seeking indemnification shall notify the indemnifying party promptly concerning any situationΒ | ||
which presents or appears likely to present a claim for indemnification. The indemnifying party shall haveΒ | ||
the option to defend against any claim which may be the subject of this indemnification and, in the eventΒ | ||
that the indemnifying party so elects, such defense shall be conducted by counsel chosen by theΒ | ||
indemnifying party, and thereupon the indemnifying party shall take over complete defense of the claimΒ | ||
and the party seeking indemnification shall sustain no further legal or other expenses in such situation forΒ | ||
which it seeks indemnification. The party seeking indemnification will not confess any claim or make anyΒ | ||
compromise in any case in which the indemnifying party will be asked to provide indemnification, exceptΒ | ||
with the indemnifying partyβs prior written consent. This Section 12(c) shall survive termination of thisΒ | ||
Agreement.Β | Β |
Β
Page 23
13.Β | Β Β Β Β Duration and Termination.Β |
Β | |
(a)Β | Β Β Β This Agreement shall be effective on the Effective Date and continue, unless validly terminatedΒ |
pursuant to this Section 13 prior thereto, until August 31, 2016 (the "Initial Term"). Following theΒ | |
expiration of the Initial Term, this Agreement shall remain in effect but thereafter either party mayΒ | |
terminate this Agreement without cause by giving one hundred eighty (180) days prior written notice toΒ | |
the other party.Β | |
Β | |
(b)Β | Β Β Β If a party materially breaches this Agreement (a "Defaulting Party") the other party (theΒ |
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party ("Breach Notice"), andΒ | |
if such material breach shall not have been remedied within thirty (30) days after the Breach Notice isΒ | |
given, then the Non Defaulting Party may terminate this Agreement by giving written notice ofΒ | |
termination to the Defaulting Party ("Breach Termination Notice"), in which case this Agreement shallΒ | |
terminate as of 11:59 PM (Eastern Time) on the 30th day following the date the Breach TerminationΒ | |
Notice is given, or such later date as may be specified in the Breach Termination Notice (but not laterΒ | |
than the last day of the Initial Term or then-current term, as appropriate). In all cases, termination by theΒ | |
Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting Party of any other rights itΒ | |
might have under this Agreement or otherwise against the Defaulting Party.Β | |
Β | |
(c)Β | Β Β Β In the event a majority of the non-interested members of the Board of Trustees of any FundΒ |
determines in their sole discretion, in the exercise of their fiduciary duties and pursuant to their reasonableΒ | |
business judgment after consultation with Xxxxx Xxxxx, that BNYM has materially failed to perform inΒ | |
accordance with the performance standards set forth in this Agreement, then such Fund or Funds mayΒ | |
terminate this Agreement by giving written notice to BNYM of such determination and BNYM shall haveΒ | |
60 days (or such longer period if the non-interested trustees so determine) to correct such performance toΒ | |
the reasonable satisfaction of the non-interested trustees. If BNYM does not correct its performance to theΒ | |
reasonable satisfaction of the non-interested trustees, such Fund or Funds may terminate this AgreementΒ | |
on sixty (60) days written notice.Β | |
Β | |
(d)Β | Β Β Β Β In the event of termination, all reasonable expenses agreed to in writing ("ConversionΒ |
Expenses") associated with movement of records and materials and conversion thereof to a successorΒ | |
transfer agent ("Conversion Actions") will be borne by the Fund and paid to BNYM prior to any suchΒ | |
conversion, including without limitation (i) reasonable expenses incurred by BNYM associated with de-Β | |
conversion to a successor service provider, (ii) reasonable expenses associated with the transfer orΒ | |
duplication of records and materials, (iii) reasonable expenses associated with the conversion of recordsΒ | |
or materials and (iv) reasonable trailing expenses (expenses or fees incurred in BNYM providing servicesΒ | |
after accounts have been transferred to a successor service provider, such as answering shareholderΒ | |
inquiries, furnishing shareholder account information and providing tax services with respect toΒ | |
transactions occurring before such transfer). In addition, in the event of termination, if BNYM continuesΒ | |
to perform any Conversion Actions or provides any other services hereunder, beyond any terminationΒ | |
date or time specified in any notice or in any other manner, the Fund shall be obligated to pay BNYMΒ | |
immediately upon being invoiced therefor, all reasonable Conversion Expenses and all other Fees andΒ | |
Reimbursable Expenses associated with the services BNYM continues to provide hereunder during suchΒ | |
period. BNYM's performance of any Conversion Actions is conditioned on the prior full performance byΒ | |
the Fund, to BNYM's reasonable satisfaction, of its obligations under Section 3(a)(12)(C)(ii).Β | |
Β | |
(e)Β | Β Β Β Β Β Notwithstanding any other provision of this Agreement, either party to this Agreement may in itsΒ |
sole discretion terminate this Agreement immediately by sending notice thereof to the other party uponΒ | |
the happening of any of the following: (i) a party commences as debtor any case or proceeding under anyΒ | |
bankruptcy, insolvency or similar law, or there is commenced against such party any such case orΒ |
Β
Page 24
proceeding; (ii) a party commences as debtor any case or proceeding seeking the appointment of aΒ | |
receiver, conservator, trustee, custodian or similar official for such party or any substantial part of itsΒ | |
property or there is commenced against such party any such case or proceeding; or (iii) a party makes aΒ | |
general assignment for the benefit of creditors. Either party may exercise its termination right under thisΒ | |
Section 13(e) at any time after the occurrence of any of the foregoing events notwithstanding that suchΒ | |
event may cease to be continuing prior to such exercise, and any delay in exercising this right shall not beΒ | |
construed as a waiver or other extinguishment of that right. Any exercise by a party of its terminationΒ | |
right under this Section 13(e) shall be without any prejudice to any other remedies or rights available toΒ | |
such party and shall not be subject to any fee or penalty, whether monetary or equitable. For purposes ofΒ | |
clarification, any termination by BNYM pursuant to this provision shall be effective solely with respect toΒ | |
the Fund that takes an action described in (i) through (iii) above.Β | |
Β | |
14.Β | Β Β Β Β Β Policies and Procedures.Β |
Β | |
(a)Β | Β Β Β Β The parties acknowledge that the manner in which BNYM performs the services described inΒ |
Section 3 and to be provided under this Agreement involve processes, actions, functions, instructions,Β | |
consents, choices, the exercise of rights or performance of obligations, communications and otherΒ | |
components, both internal to BNYM and interactive between the parties, necessitated or made appropriateΒ | |
by business or by legal or regulatory considerations, or both, that in most cases are far too numerous andΒ | |
minutely detailed to expressly include in this Agreement and that, accordingly, the parties agree thatΒ | |
BNYM shall perform the services provided for in this Agreement in accordance with the written policies,Β | |
procedures, manuals, documentation and other operational guidelines of BNYM governing theΒ | |
performance of the services in effect at the time the services are performed ("Standard Procedures"),Β | |
that BNYM may from time to time revise its Standard Procedures (subject to timely notice of materialΒ | |
changes to the Fund), and that the Standard Procedures are expressly intended to supplement theΒ | |
description of services provided for herein, but that the express terms of this Agreement will alwaysΒ | |
prevail in any conflict with the Standard Procedures. BNYM may embody in its Standard Procedures anyΒ | |
course of conduct which it reasonably determines is commercially reasonable or consistent with generallyΒ | |
accepted industry practices, principles or standards ("Industry Standard") and in making suchΒ | |
determination may rely on such information, data, research, analysis and advice, including legal analysisΒ | |
and advice, as it reasonably determines appropriate under the circumstances.Β | |
Β | |
(b)Β | Β Β Β Β Β Notwithstanding any other provision of this Agreement, the following terms of this Section 14(b)Β |
shall apply in the event facts, circumstances or conditions exist or events occur, other than due to a breachΒ | |
by BNYM of its Standard of Care, which would require a service to be provided hereunder other than inΒ | |
accordance with BNYM's Standard Procedures, or if BNYM is requested by the Fund, or a third partyΒ | |
authorized to act for the Fund, to deviate from a Standard Procedure in connection with the performanceΒ | |
of a service hereunder or institute a procedure with respect to which there is no Standard ProcedureΒ | |
(collectively, "Non-Standard Procedures"):Β | |
Β | |
(i)Β | BNYM shall not under any circumstances be obligated to act in accordance with anyΒ |
Β | communication, Written Instructions, processes or other direction or set of procedures which itΒ |
Β | determines in good faith in its discretion to constitute or require a Non-Standard Procedure,Β |
Β | provided that it timely notifies the Fund of such determination. BNYM reserves the right prior toΒ |
Β | evaluating, developing or implementing a Non-Standard Procedure, incurring out-of-pocketΒ |
Β | expenses in connection with a Non-Standard Procedure or devoting internal resources to a Non-Β |
Β | Standard Procedure to require that the Fund agree in writing to reimburse BNYM for all costs andΒ |
Β | expenses incurred in connection with evaluating, developing and implementing a Non-StandardΒ |
Β | Procedure, including without limitation costs associated with consulting with and obtaining theΒ |
Β | opinions of programmers, specialists, legal counsel, consultants or other third parties reasonablyΒ |
Β | considered by BNYM to be appropriate in light of the Non-Standard Procedure requestedΒ |
Β
Page 25
Β | ("Exception Research") and the costs associated with utilizing internal resources to develop andΒ | |
Β | implement the Non-Standard Procedure, and to pay the fees and charges established by BNYMΒ | |
Β | for performing the Non-Standard Procedure. If such request is not made prior to any such actionΒ | |
Β | by BNYM, the Fund will have no obligation to pay such costs, fees and expenses. The FundΒ | |
Β | may, in place of agreeing to reimburse BNYM for the costs of Exception Research, agree in suchΒ | |
Β | written authorization to provide BNYM with all Exception Research reasonably requested byΒ | |
Β | BNYM at the Fund's cost and expense.Β | |
Β | ||
(ii)Β | Following receipt of all requested Exception Research, BNYM may, in its sole discretion, as anΒ | |
Β | accommodation and not pursuant to any obligation, agree to provide a Non-Standard Procedure ifΒ | |
Β | it receives a Written Instruction containing terms and conditions satisfactory to it in its soleΒ | |
Β | discretion, including without limitation a provision providing indemnification greater and broaderΒ | |
Β | than that contained in the Agreement, terms constituting additional agreements with respect toΒ | |
Β | fees, charges, and expenses, terms constituting appropriate warranties, representations andΒ | |
Β | covenants, and terms specifying with particularity the course of conduct constituting the Non-Β | |
Β | Standard Procedure.Β | |
Β | ||
(iii)Β | BNYM reserves the right following receipt of all Exception Research and not withstanding suchΒ | |
Β | receipt to continue to decline to perform the Non-Standard Procedure for a Bona Fide Reason.Β | |
Β | ||
(c)Β | In the event that the Fund requests documentation, analysis or verification in whatsoever formΒ | |
regarding the commercial reasonableness or industry acceptance of conduct provided for in a StandardΒ | ||
Procedure, BNYM will cooperate to furnish such materials as it may have in its possession at the time ofΒ | ||
the request without cost to the Fund, but the Fund agrees that BNYM may request the Fund to reimburseΒ | ||
BNYM for all out of pockets costs and expenses incurred, including the costs of legal or expert advice orΒ | ||
analysis, in obtaining additional materials in connection with the request prior to obtaining such advice,Β | ||
analysis or materials.Β | ||
Β | ||
15.Β | Notices. Notices permitted or required by this Agreement shall be in writing and:Β | |
Β | ||
(i)Β | addressed as follows, unless a notice provided in accordance with this Section 15 shall specify aΒ | |
Β | different address or individual:Β | |
Β | ||
Β | (A)Β | if to BNYM, to BNY Mellon Investment Servicing (US) Inc., 000 Xxxxxxxx Xxxxxxx,Β |
Β | Β | Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; with a copy to BNY MellonΒ |
Β | Β | Investment Servicing (US) Inc., 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,Β |
Β | Β | Attention: Senior Counsel β Transfer Agency; andΒ |
Β | ||
Β | (B)Β | if to the Fund, c/o Xxxxx Xxxxx Management, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XXΒ |
Β | Β | 00000, Attention: Fund Secretary;Β |
Β | ||
(ii)Β | delivered: by hand (personal delivery by an Authorized Person to addressee); private messenger,Β | |
Β | with signature of recipient; U.S. Postal Service (with return receipt or other delivery verificationΒ | |
Β | provided); overnight national courier service, with signature of recipient, or facsimile sendingΒ | |
Β | device providing for automatic confirmation of receipt; andΒ | |
Β | ||
(iii)Β | deemed given on the day received by the receiving party.Β | |
Β | ||
16.Β | Amendments.Β | |
Β | ||
(a)Β | This Agreement, or any term thereof, including without limitation the Schedules, Exhibits andΒ |
Β
Page 26
Appendices hereto, may be changed or waived only by a written amendment, signed by the party againstΒ | |
whom enforcement of such change or waiver is sought.Β | |
Β | |
(b)Β | Β Β Β Β Β Β Notwithstanding subsection (a) above, in the event an officer of the Investment Company or otherΒ |
person acting with apparent authority on behalf of the Investment Company requests that BNYM performΒ | |
some or all of the services provided for in this Agreement for a Fund or Portfolio not listed on ScheduleΒ | |
B, as amended, and such Fund or Portfolio accepts such services and the relevant Investment Company orΒ | |
Portfolio pays amounts provided for in the Fee Agreement as Fees and Reimbursable Expenses, then inΒ | |
the absence of an express written statement to the contrary such services are provided in accordance withΒ | |
the terms of this Agreement and the Fund shall be bound by the terms of the then-current Agreement withΒ | |
respect to all matters addressed herein, except that if the additional Fund or Portfolio receives under thisΒ | |
arrangement any service that differs materially from services provided for in the then-current AgreementΒ | |
then BNYM may terminate the arrangement if within 60 days of the first acceptance of services fromΒ | |
BNYM by the Fund or Portfolio the Investment Company and BNYM do not execute a writtenΒ | |
amendment to this Agreement (including Schedule B) on terms mutually acceptable to BNYM and theΒ | |
Investment Company. BNYM and the Investment Company agree to negotiate the terms of suchΒ | |
amendment in good faith but each reserves the right to negotiate terms that differ from the then-currentΒ | |
terms of the Agreement and that it determines to be appropriate to the additional Fund or Portfolio. If anΒ | |
additional Fund or Portfolio is to receive or does receive services under this arrangement and none ofΒ | |
such services differ materially from those provided for in the then-current Agreement, Company agrees toΒ | |
enter into an amendment to Schedule B to include such Fund or Portfolio as promptly as practicable butΒ | |
in no event later than within sixty (60) days following the first acceptance of services by the Fund orΒ | |
Portfolio from BNYM.Β | |
Β | |
17.Β | Β Β Β Β Β Β Delegation; Assignment. This Agreement shall extend to and shall be binding upon the partiesΒ |
hereto, and their respective successors and assigns; provided, however, that any assignment of thisΒ | |
Agreement (as defined in the 0000 Xxx) to an entity shall require the written consent of the other party,Β | |
which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing: To the extentΒ | |
appropriate under rules and regulations of the NSCC, BNYM may satisfy its obligations with respect toΒ | |
services involving the NSCC through an Affiliate that is a member of the NSCC by delegation orΒ | |
subcontracting; BNYM may assign or transfer this Agreement to an Affiliate, provided that BNYM givesΒ | |
the Investment Company thirty (30) days' prior written notice of such assignment or transfer and suchΒ | |
assignment or transfer does not impair the Investment Company's receipt of services under thisΒ | |
Agreement in any material respect, and the assignee or transferee agrees to be bound by all terms of thisΒ | |
Agreement in place of BNYM; and upon notice to the Fund, BNYM may subcontract with, hire, engageΒ | |
or otherwise outsource to any third party, which for the avoidance of doubt shall include Affiliates, withΒ | |
respect to the performance of any one or more of the functions, services, duties or obligations of BNYMΒ | |
under this Agreement and BNYM will be fully responsible for the actions or inactions of any such thirdΒ | |
party to the same extent as if such actions or inactions had been taken by BNYM directly.Β | |
Β | |
18.Β | Β Β Β Β Facsimile Signatures; Counterparts. This Agreement may be executed in one moreΒ |
counterparts; but such counterparts shall, together, constitute only one instrument.Β | |
Β | |
19.Β | Β Β Β Β Β Xxxxx Xxxxx Obligations. Notwithstanding the provisions of this Agreement to the contrary, theΒ |
parties acknowledge, and the Fund accepts, that BNYM has entered into an agreement with Xxxxx XxxxxΒ | |
pursuant to which Xxxxx Xxxxx has agreed to perform on behalf of BNYM certain obligations of BNYMΒ | |
to the Fund under this Agreement.Β | |
Β | |
20.Β | Β Β Β Β Β Miscellaneous.Β |
Β | |
(a)Β | Β Β Β Β Β Entire Agreement. This Agreement embodies the final, complete, exclusive and fully integratedΒ |
Β
Page 27
record of the agreement of the parties on the subject matter herein and supersedes all prior agreementsΒ | |
and understandings relating to such subject matter, provided that the parties may embody in one or moreΒ | |
separate documents their agreement, if any, with respect to delegated duties.Β | |
Β | |
(b)Β | Non-Solicitation. During the effectiveness of this Agreement and for one year thereafter, theΒ |
Fund shall not, directly or indirectly, knowingly solicit or recruit for employment or hire, or make aΒ | |
recommendation, or referral or otherwise knowingly assist or facilitate the solicitation or recruitment ofΒ | |
any BNYM employee, for employment by any other entity. To βknowinglyβ solicit, recruit, hire, assist orΒ | |
facilitate, within the meaning of this provision, does not include, and therefore does not prohibit,Β | |
solicitation, recruitment or hiring of a BNYM employee by another entity if the BNYM employee wasΒ | |
identified solely as a result of the BNYM employeeβs response to a general advertisement in a publicationΒ | |
of trade or industry interest or other similar general solicitation.Β | |
Β | |
(c)Β | No Changes that Materially Affect Obligations. Notwithstanding any other provision of thisΒ |
Agreement, the Fund agrees not to make any modifications to its registration statement or otherΒ | |
Shareholder Materials or to adopt any policies which would affect materially the obligations orΒ | |
responsibilities of BNYM hereunder without the prior written approval of BNYM, which approval shallΒ | |
not be unreasonably withheld or delayed. Such approval, if given, shall not constitute a waiver orΒ | |
abridgment of any rights under this Agreement. The scope of services to be provided by BNYM underΒ | |
this Agreement shall not be increased as a result of new or revised regulatory or other requirements thatΒ | |
may become applicable with respect to the Fund, unless the parties hereto expressly agree in writing toΒ | |
any such increase.Β | |
Β | |
(d)Β | Captions. The captions in this Agreement are included for convenience of reference only and inΒ |
no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.Β | |
Β | |
(e)Β | Information. The Fund will provide such information and documentation as BNYM mayΒ |
reasonably request in connection with services provided by BNYM to the Fund.Β | |
Β | |
(f)Β | Governing Law. The laws of the Commonwealth of Massachusetts, excluding the laws onΒ |
conflicts of laws, shall govern the interpretation, validity, and enforcement of this agreement. All actionsΒ | |
arising from or related to this Agreement shall be brought in the state and federal courts sitting in the CityΒ | |
of Boston, and the parties hereby submit themselves to the exclusive jurisdiction of those courts.Β | |
Β | |
(g)Β | Partial Invalidity. If any provision of this Agreement shall be held or made invalid by a courtΒ |
decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby. In suchΒ | |
case, the parties shall in good faith modify or substitute such provision consistent with the original intentΒ | |
of the parties.Β | |
Β | |
(h)Β | Parties in Interest. This Agreement shall be binding upon and shall inure to the benefit of theΒ |
parties hereto and their respective successors and permitted assigns. Except with respect to those certainΒ | |
provisions providing for rights of the Custodian or obligations of the Fund with respect to the Custodian,Β | |
and those certain provisions (including Section 19 of this Agreement) which may benefit affiliates of theΒ | |
Parties, this Agreement is not for the benefit of any other person or entity and (ii) there shall be no thirdΒ | |
party beneficiaries hereof.Β | |
Β | |
(i)Β | No Representations or Warranties. Except as expressly provided in this Agreement, BNYMΒ |
hereby disclaims all representations and warranties, express or implied, made to the Fund or any otherΒ | |
person, including, without limitation, any warranties regarding quality, suitability, merchantability, fitnessΒ | |
for a particular purpose or otherwise (irrespective of any course of dealing, custom or usage of trade), ofΒ | |
any services or any goods provided incidental to services provided under this Agreement. BNYMΒ |
Β
Page 28
disclaims any warranty of title or non-infringement except as expressly set forth in this Agreement.Β | |
Β | |
(j)Β | Customer Identification Program Notice. To help the U.S. government fight the funding ofΒ |
terrorism and money laundering activities, U.S. Federal law requires each financial institution to obtain,Β | |
verify, and record certain information that identifies each person who initially opens an account with thatΒ | |
financial institution on or after October 1, 2003. Certain of BNYMβs affiliates are financial institutions,Β | |
and BNYM may, as a matter of policy, request (or may have already requested) the name, address andΒ | |
taxpayer identification number or other government-issued identification number of the Fund or others,Β | |
and, if such other is a natural person, that person's date of birth. BNYM may also ask (and may haveΒ | |
already asked) for additional identifying information, and BNYM may take steps (and may have alreadyΒ | |
taken steps) to verify the authenticity and accuracy of these data elements.Β | |
Β | |
(k)Β | Compliance with Law. Each of BNYM and the Fund agrees to comply in all material respectsΒ |
with the respective laws, rules, regulations and legal process applicable to the operation of its businessΒ | |
("Applicable Laws"). The Fund agrees that BNYM is not obligated to assist the Fund with compliance,Β | |
or to bring the Fund into compliance, with the Fund's Applicable Laws, and that the Fund is solelyΒ | |
responsible for such compliance, except where BNYM has expressly agreed to provide that complianceΒ | |
service as a service hereunder.Β | |
Β | |
(l)Β | Requests to Transfer Information to Third Parties. In the event that the Fund, whether pursuant toΒ |
Written Instructions or otherwise, requests or instructs BNYM to send, deliver, mail, transmit orΒ | |
otherwise transfer to a third party which is not a subcontractor of BNYM and which is not the DTCC,Β | |
NSCC or other SEC-registered clearing corporation, or to make available to such a third party forΒ | |
retrieval from within the BNYM System, information which constitutes Confidential Information of theΒ | |
Fund or non-public personal information of current or former investors in the Fund: BNYM may declineΒ | |
to provide the information requested on the terms contained in the request, but will in good faith discussΒ | |
the request and attempt to accommodate the Fund with respect to the request due to legal or regulatoryΒ | |
concerns, transmission specifications not supported by BNYM, or other good faith reasons and BNYMΒ | |
will not be obligated to act on any such request unless it agrees in writing to the terms of the informationΒ | |
transfer. In the event BNYM so agrees in writing to transfer information or make it available within theΒ | |
BNYM System: the Fund shall pay a reasonable fee for such activities upon being invoiced for same byΒ | |
BNYM; BNYM shall have no liability or duty with respect to such information after it releases theΒ | |
information or makes it available within the BNYM System, provided BNYM has acted in accordanceΒ | |
with its Standard of Care in executing the express instructions of the written information transfer request;Β | |
and BNYM shall be entitled to the indemnification provided for at Section 12 in connection with theΒ | |
activities contemplated by any such written information transfer request.Β | |
Β | |
(m)Β | Service Indemnifications; Survival. Any indemnification provided to BNYM by the Fund inΒ |
connection with any service provided under the Agreement, including by way of illustration and notΒ | |
limitation, indemnifications provided in connection with Non-Standard Instructions and indemnificationsΒ | |
contained in any agreements regarding Non-Standard Procedures ("Service Indemnifications"), shallΒ | |
survive any termination of this Agreement. In addition, Sections 4, 5, 7, 9(d), 9(f), 9(g), 11, 12 andΒ | |
provisions necessary to the interpretation of such Sections and any Service Indemnifications and theΒ | |
enforcement of rights conferred by any of the foregoing shall survive any termination of this Agreement.Β | |
In the event the Board of the Fund authorizes a liquidation of the Fund or termination of the Agreement,Β | |
BNYM may request as a condition of any services provided in connection with such liquidation orΒ | |
termination that the Fund make provisions reasonably satisfactory to BNYM for the satisfaction ofΒ | |
contingent liabilities outstanding at the time of the liquidation or termination.Β | |
Β | |
(n)Β | Further Actions. Each party agrees to perform such further acts and execute such furtherΒ |
documents as are necessary to effectuate the purposes hereof.Β |
Β
Page 29
(o)Β | Liability of Trustees, Officers and Shareholders. The execution and delivery of this AgreementΒ |
have been authorized by the Trustees of the Investment Company and signed by an authorized OfficerΒ | |
thereof, acting as such, and neither such authorization by such Trustees nor such execution and deliveryΒ | |
by such Officer shall be deemed to have been made by any of them individually or to impose any liabilityΒ | |
on any of them personally, and the obligations of this Agreement are not binding upon any of the TrusteesΒ | |
or shareholders of the Investment Company, but bind only the property of the Investment Company. NoΒ | |
series or class of an Investment Company shall be liable for the obligations of another series or class.Β |
Β
[Signature page follows.]
Page 30
Β Β Β Β Β IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
BNY Mellon Investment Servicing (US) Inc.Β | Each Investment Company listed on Schedule BΒ |
Β | on behalf of each Fund (individually andΒ |
Β | separately, but not jointly)Β |
Β | |
By: /s/ Xxxxx X. XxxxxΒ | By: /s/ Xxxxxxx XxxxxxxxΒ |
Name: Xxxxx X. XxxxxΒ | Name: Xxxxxxx XxxxxxxxΒ |
Title: Managing DirectorΒ | Title: TreasurerΒ |
Β
Page 31
SCHEDULE A
Definitions
As used in this Agreement:Β |
Β |
"1933 Act" means the Securities Act of 1933, as amended.Β |
Β |
"1934 Act" means the Securities Exchange Act of 1934, as amended.Β |
Β |
"1940 Act" means Investment Company Act of 1940, as amended.Β |
Β |
"Affiliate" means an entity controlled by, controlling or under common control with the subject entity,Β |
with βcontrolβ for this purpose defined to mean direct or beneficial ownership of 50% or more of theΒ |
equity interests of an entity and possession of the power to elect 50% or more of the entity's directors,Β |
trustees or similar persons performing policy-making functions.Β |
Β |
"Authorized Person" means, with respect to the Fund, any officer of the Fund and any other person dulyΒ |
authorized by an officer of the Fund, or any other person duly authorized by the foregoing AuthorizedΒ |
Person, in a manner reasonably satisfactory to BNYM to give Instructions on behalf of the Fund, and,Β |
with respect to BNYM, employees designated in writing as authorized to receive emails as WrittenΒ |
Instructions (as provided in the definition of that term). Any limitation on the authority of an AuthorizedΒ |
Person to give Instructions must be expressly set forth in a written document signed by an officer of theΒ |
Fund.Β |
Β |
"BNY Mellon Bank" means The Bank of New York Mellon, a New York chartered commercial bank andΒ |
affiliate of BNYM, and its lawful successors and assigns.Β |
Β |
"BNY Mellon Investment Servicing Trust" means BNY Mellon Investment Servicing Trust Company, anΒ |
affiliate of BNYM, and its lawful successors and assigns.Β |
Β |
"Claim" means any claim, demand, suit, action, obligation, liability, suit, controversy, breach, proceedingΒ |
or allegation of any nature, including any threat of any of the foregoing (including but not limited to thoseΒ |
arising out of or related to this Agreement) and regardless of the form of action or legal theory or forum.Β |
Β |
"Code" means the Internal Revenue Code of 1986, as amended.Β |
Β |
"conduct" or "course of conduct" means a single act, two or more acts, a single instance of an action notΒ |
being taken or of forbearance given, two or more instances of an action not being taken or of forbearanceΒ |
given, or any combination of the foregoing.Β |
Β |
"Xxxxx Xxxxx" means Xxxxx Xxxxx Management, a Massachusetts business trust.Β |
Β |
"FinCEN" means the Financial Crimes Enforcement Network of the U.S. Department of the Treasury.Β |
Β |
"Fund Error" means the Fund or a third party acting on behalf of the Fund or conveying Fund data orΒ |
information committing an error, furnishing inaccurate, incorrect or incomplete data or information toΒ |
BNYM or BNY Mellon Investment Servicing Trust or by other act or omission requiring Remediation.Β |
Β |
"Fund Shares" (see "Shares")Β |
Β
Page 32
"Instructions" means Oral Instructions and Written Instructions considered collectively or individually.Β |
Β |
"Intellectual Property Rights" means copyright, patent, trade secret, trademark and any other proprietaryΒ |
or intellectual property rights.Β |
Β |
"Loss" and "Losses" means any one, or any series of related, losses, costs, damages, expenses, awards,Β |
judgments, assessments, fines, penalties, payments, reimbursements, adverse consequences, liabilities orΒ |
obligations of any nature, including without limitation any of the foregoing arising out of any Claim andΒ |
all costs of litigation or threatened litigation such as but not limited to court costs, reasonable costs ofΒ |
counsel, discovery, experts, settlement and investigation.Β |
Β |
"Loss Date" means the date of occurrence of the event or circumstance causing a particular Loss, or theΒ |
date of occurrence of the first event or circumstance in a series of events or circumstances causing aΒ |
particular Loss.Β |
Β |
"Oral Instructions" means oral instructions received by BNYM from an Authorized Person or from aΒ |
person reasonably believed by BNYM to be an Authorized Person. BNYM may, in its sole discretion inΒ |
each separate instance, consider and rely upon instructions it receives from an Authorized Person viaΒ |
electronic mail as Oral Instructions.Β |
Β |
"Portfolio" means each separate subdivision of the Fund, whether characterized or structured as aΒ |
portfolio, class, tier or otherwise, listed on Schedule B hereto or included within this Agreement by virtueΒ |
of the operation of Section 16(b).Β |
Β |
"Remediation Services" means the additional services required to be provided hereunder by BNYM orΒ |
BNY Mellon Investment Servicing Trust in connection with a Fund Error in order to correct, remediate,Β |
adjust, reprocess, repeat, reverse or otherwise modify conduct previously taken in accordance with theΒ |
Agreement to achieve the outcome originally intended by the previous conduct.Β |
Β |
"SEC" means the U.S. Securities and Exchange Commission.Β |
Β |
"Securities Laws" means the 1933 Act, the 1934 Act and the 1940 Act.Β |
Β |
"Shareholder Materials" means the Fund's prospectus, statement of additional information and any otherΒ |
materials relating to the Fund provided to Fund shareholders by the Fund.Β |
Β |
"Shares" or "Fund Shares" means the shares or other units of beneficial interest of each Fund.Β |
Β |
"Written Instructions" means (1) written instructions (i) which are signed by an Authorized Person of theΒ |
Fund (or a person reasonably believed by BNYM to be an Authorized Person of the Fund), (ii) which,Β |
only in the case of a Standard Instruction Form, are agreed to in writing by BNYM on the instrumentΒ |
containing the written instructions, (iii) which are addressed to and received by BNYM, and (iv) whichΒ |
are delivered by (A) hand (personally delivery by the Authorized Person), (B) private messenger, U.S.Β |
Postal Service or overnight national courier which provides confirmation of receipt with respect to theΒ |
particular delivery, or (C) facsimile sending device which provides automatic confirmation of theΒ |
standard details of receipt, (2) trade instructions transmitted to and received by BNYM by means of anΒ |
electronic transaction reporting system which requires use of a password or other authorized identifier inΒ |
order to gain access; and (3) electronic mail or "email" sent by an Authorized Person of the Fund to, andΒ |
acknowledged by, an Authorized Person of BNYM.Β |
Β |
"Written Procedures" means, collectively, (i) Standard Procedures, and (ii) Non-Standard Procedures withΒ |
Β
Page 33
respect to which BNYM has received the Written Instruction required by Section 14(b)(2).
-------------------------------------------------------------------------------------------------------------------------------
INDEX OF DEFINED TERMS
(includes defined terms through Schedule C; excludes terms defined in Schedule D solely for Schedule D)
TermΒ | LocationΒ |
1933 ActΒ | Schedule AΒ |
1934 ActΒ | Schedule AΒ |
1940 ActΒ | Schedule AΒ |
314(a) ProceduresΒ | Β§ 3(b)(4)Β |
AccountΒ | Schedule C, Β§ (b)(i)(G)Β |
Account DocumentationΒ | Β§ 3(a)(12)(C)(iii)Β |
Additional FundΒ | Β§ 19(m)Β |
AffiliateΒ | Schedule AΒ |
Affiliated Third Party InstitutionsΒ | Β§ 9(b)Β |
AgreementΒ | PreambleΒ |
AMLΒ | Β§ 3(b)(l)Β |
AML ServicesΒ | Β§ 3(b)Β |
Applicable LawsΒ | Β§ 19(k)Β |
Appropriate List Matching DataΒ | Β§ 3(b)(5)(C)Β |
Audit ReportΒ | Schedule C, Β§ (b)(iv)Β |
Authorized PersonΒ | Schedule AΒ |
Banking ChargesΒ | Β§ 9(b)(i)Β |
BNYMΒ | PreambleΒ |
BNY Mellon BankΒ | Schedule AΒ |
BNY Mellon Investment Servicing TrustΒ | Schedule AΒ |
BNYM SystemΒ | Β§ 3(d)Β |
Bona Fide ReasonΒ | Β§ 10(c)Β |
Breach NoticeΒ | Β§ 13(c)Β |
Breach Termination NoticeΒ | Β§ 13(c)Β |
Change in ControlΒ | Β§ 13(d)(iv)Β |
CIP RegulationsΒ | Β§ 3(b)(3)(A)Β |
ClaimΒ | Schedule AΒ |
CodeΒ | Schedule AΒ |
conductΒ | Schedule AΒ |
Confidential InformationΒ | Β§ 4(b)Β |
Comparison ResultsΒ | Β§ 3(b)(4)Β |
ControlsΒ | Schedule C, Β§ (b)(i)Β |
Conversion ActionsΒ | Β§ 13(e)Β |
Conversion ExpensesΒ | Β§ 13(e)Β |
course of conductΒ | Schedule AΒ |
Covered AccountΒ | Schedule C, Β§ (b)(i)(F)Β |
Covered PersonΒ | Schedule C, Β§ (b)(i)(D)Β |
CustodianΒ | Β§ 3(a)(12)(C)Β |
CustomerΒ | Β§ 3(b)(3)(A)(i)Β |
Custodied AccountΒ | Β§ 3(a)(12)(C)Β |
Data ElementsΒ | Β§ 3(b)(3)(A)(i)Β |
Defaulting PartyΒ | Β§ 13(c)Β |
Direct AccountΒ | Schedule C, Β§ (b)(i)(E)Β |
Β
Page 34
DirectorΒ | Β§ 3(b)(5)(A)(iii)Β |
Dissolution EventΒ | Β§ 9(h)Β |
Early TerminationΒ | Β§ 13(d)Β |
Early Termination FeeΒ | Β§ 13(d)(ii)Β |
Xxxxx XxxxxΒ | Schedule AΒ |
Effective DateΒ | PreambleΒ |
Eligible AssetsΒ | Β§ 3(a)(12)(A)(i)Β |
Event Beyond Reasonable ControlΒ | Β§ 11(c)Β |
Exception ResearchΒ | Β§ 14(b)(i)Β |
External ResearchΒ | Β§ 10(d)(i)Β |
Fee AgreementΒ | Β§ 9(a)Β |
FeesΒ | Β§ 9(a)Β |
FFI RegulationsΒ | Β§ 3(b)(2)(A)Β |
Final DistributionΒ | Β§ 9(h)Β |
Final ExpensesΒ | Β§ 9(h)Β |
FinCENΒ | Schedule AΒ |
Foreign Financial InstitutionΒ | Β§ 3(b)(2)(A)(i)Β |
FundΒ | BackgroundΒ |
Fund Applicable LawsΒ | Β§ 3(b)(9)Β |
Fund CommunicationΒ | Β§ 10(g)Β |
Fund CustodianΒ | Β§ 3(a)(1)(xiii)Β |
Fund DataΒ | Β§ 3(b)(5)(A)Β |
Fund ErrorΒ | Schedule AΒ |
Fund RegistryΒ | Schedule C, Β§ (b)(i)(C)Β |
Fund SharesΒ | Schedule AΒ |
Identity TheftΒ | Schedule C, Β§ (b)(i)(B)Β |
Imputed Account CreditΒ | Β§ 9(b)(ii)Β |
Industry StandardΒ | Β§ 14(a)Β |
Information RequestsΒ | Β§ 3(b)(4)Β |
Initial TermΒ | Β§ 13(a)Β |
InstructionsΒ | Schedule AΒ |
Intellectual Property RightsΒ | Schedule AΒ |
Internal ResearchΒ | Β§ 10(d)(i)Β |
Investment CompanyΒ | PreambleΒ |
Legal ProcessΒ | Β§ 3(b)(6)Β |
Loss, LossesΒ | Schedule AΒ |
Loss DateΒ | Schedule AΒ |
Lost Shareholder RuleΒ | Β§ 3(a)(11)(A)Β |
Massachusetts Privacy RegulationΒ | Β§ 5Β |
Material EventΒ | Β§ 3(a)(12)(C)(i)Β |
NCCT ListΒ | Β§ 3(b)(5)(A)(ii)Β |
Non-Defaulting PartyΒ | Β§ 13(c)Β |
Non-Renewal NoticeΒ | Β§ 13(b)Β |
Non-Standard InstructionΒ | Β§ 10(c)Β |
Non-Standard ProceduresΒ | Β§ 14(b)Β |
OFACΒ | Β§ 3(b)(5)(A)(i)Β |
OFAC ListsΒ | Β§ 3(b)(5)(A)(i)Β |
Oral InstructionsΒ | Schedule AΒ |
Overdraft AmountΒ | Β§ 9(c)(i)Β |
Β
Page 35
ParticipantΒ | Β§ 3(a)(12)(A)(ii)Β |
PMLC DeterminationΒ | Β§ 3(b)(5)(A)(iii)Β |
PortfolioΒ | Schedule AΒ |
Possible Identity TheftΒ | Schedule C, Β§ (b)(iii)Β |
Red FlagΒ | Schedule C, Β§ (b)(i)(A)Β |
Red Flags RequirementsΒ | Schedule C, Β§ (c)Β |
Red Flags SectionΒ | Schedule C, Β§ (a)Β |
Red Flags ServicesΒ | Schedule C, Β§ (b)Β |
Registered OwnerΒ | Schedule C, Β§ (b)(i)(C)Β |
Reimbursable ExpensesΒ | Β§ 9(a)Β |
Related Custodian MaterialsΒ | Β§ 3(a)(12)(C)(iv)Β |
Related PartiesΒ | Β§ 3(a)(12)(C)(iii)Β |
Remediation ServicesΒ | Schedule AΒ |
Removed AssetsΒ | Β§ 13(d)(vi)Β |
Renewal TermΒ | Β§ 13(b)Β |
ResearchΒ | Β§ 10(d)(i)Β |
Response FailureΒ | Β§ 10(i)Β |
SECΒ | Schedule AΒ |
Securities DataΒ | Β§ 11(h)Β |
Securities LawsΒ | Schedule AΒ |
Service AccountsΒ | Β§ 9(b)Β |
Service IndemnificationsΒ | Β§ 19(o)Β |
Shareholder MaterialsΒ | Schedule AΒ |
SharesΒ | Schedule AΒ |
Standard Instruction FormΒ | Β§ 10(b)Β |
Standard InstructionsΒ | Β§ 10(b)Β |
Standard of CareΒ | Β§ 11(a)Β |
Standard ProceduresΒ | Β§ 14(a)Β |
Tax Advantaged AccountΒ | Β§ 3(a)(12)(A)(iii)Β |
Third Party InstitutionΒ | Β§ 9(b)Β |
UCITAΒ | Β§ 19(f)Β |
U.S. Government ListsΒ | Β§ 3(b)(5)(A)Β |
Written InstructionsΒ | Schedule AΒ |
Written ProceduresΒ | Schedule AΒ |
Β | |
[End of Schedule A]Β |
Β
Page 36
SCHEDULE B
(Dated: September 1, 2011)
Β Β Β Β Β THIS SCHEDULE B is Schedule B to that certain Transfer Agency Services Agreement effective as of September 1, 2011, between BNY Mellon Investment Servicing (US) Inc. and the following Investment Companies, individually and separately, but not jointly.
Β Β Β Β Β Funds or Portfolios marked with an asterisk (*) are pending registration with the Securities and Exchange Commission.
InvestmentΒ CompanyΒ Β | FundΒ Β | Portfolio(s)Β Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ GrowthΒ TrustΒ Β | XxxxxΒ XxxxxΒ AsianΒ SmallΒ CompaniesΒ FundΒ Β | ClassesΒ A,Β BΒ Β |
Β Β | XxxxxΒ XxxxxΒ AtlantaΒ CapitalΒ FocusedΒ GrowthΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ AtlantaΒ CapitalΒ XXXX CapΒ FundΒ Β | ClassesΒ A,Β I,Β C,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ FocusedΒ GrowthΒ OpportunitiesΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ FocusedΒ ValueΒ OpportunitiesΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ GreaterΒ ChinaΒ GrowthΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Multi CapΒ GrowthΒ FundΒ Β | ClassesΒ A,Β B,Β CΒ Β |
Β Β | XxxxxΒ XxxxxΒ XxxxxxxΒ XxxxxxxxxΒ AllΒ AssetΒ StrategyΒ Fund*Β Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ XxxxxxxΒ XxxxxxxxxΒ EquityΒ StrategyΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β | (reflectedΒ nameΒ changeΒ effectiveΒ 9 30 11)Β Β Β | Β |
Β Β | XxxxxΒ XxxxxΒ WorldwideΒ HealthΒ SciencesΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ InvestmentΒ TrustΒ Β | XxxxxΒ XxxxxΒ AMT FreeΒ LimitedΒ MaturityΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ MassachusettsΒ LimitedΒ MaturityΒ MunicipalΒ IncomeΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β | FundΒ Β | Β |
Β Β | XxxxxΒ XxxxxΒ NationalΒ LimitedΒ MaturityΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ NewΒ JerseyΒ LimitedΒ MaturityΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ NewΒ YorkΒ LimitedΒ MaturityΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ PennsylvaniaΒ LimitedΒ MaturityΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ MunicipalsΒ TrustΒ Β | XxxxxΒ XxxxxΒ AlabamaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ ArizonaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ ArkansasΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ CaliforniaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ ConnecticutΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ GeorgiaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ KentuckyΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ MarylandΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ MassachusettsΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ MichiganΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | Β Β Β Β Β (proposedΒ mergerΒ intoΒ theΒ NationalΒ Fund)Β Β | Β Β |
Β Β | XxxxxΒ XxxxxΒ MinnesotaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ MissouriΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ MunicipalΒ OpportunitiesΒ FundΒ Β | ClassesΒ A,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ NationalΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ NewΒ JerseyΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ NewΒ YorkΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ NorthΒ CarolinaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ OhioΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ OregonΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ PennsylvaniaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β
Page 37
Β Β | XxxxxΒ XxxxxΒ RhodeΒ IslandΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | Β Β Β Β Β (proposedΒ mergerΒ intoΒ theΒ NationalΒ Fund)Β Β | Β Β |
Β Β | XxxxxΒ XxxxxΒ SouthΒ CarolinaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ TennesseeΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ VirginiaΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ ManagedΒ IncomeΒ Β Β | 2019Β MunicipalsΒ Β | ClassesΒ A,Β IΒ Β |
TermΒ TrustΒ (notΒ currentlyΒ Β | 2029Β MunicipalsΒ Β | ClassesΒ A,Β IΒ Β |
offered)Β Β | 2019Β InvestmentΒ GradeΒ CorporatesΒ Β | ClassesΒ A,Β IΒ Β |
Β Β | 2019Β InvestmentΒ GradeΒ Non FinancialΒ CorporatesΒ Β | ClassesΒ A,Β IΒ Β |
Β Β | 2019Β MunicipalsΒ Β | ClassesΒ A,Β IΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ MunicipalsΒ TrustΒ IIΒ Β | XxxxxΒ XxxxxΒ HighΒ YieldΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax AdvantagedΒ BondΒ StrategiesΒ ShortΒ TermΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax AdvantagedΒ BondΒ StrategiesΒ IntermediateΒ TermΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β | FundΒ Β | Β |
Β Β | XxxxxΒ XxxxxΒ Tax AdvantagedΒ BondΒ StrategiesΒ LongΒ TermΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax AdvantagedΒ Treasury LinkedΒ StrategiesΒ FundΒ (notΒ Β | Β Β |
Β | currentlyΒ offered)Β Β | Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ MutualΒ FundsΒ TrustΒ Β | XxxxxΒ XxxxxΒ AMT FreeΒ MunicipalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ AtlantaΒ CapitalΒ HorizonΒ GrowthΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ BuildΒ AmericaΒ BondΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ EmergingΒ MarketsΒ LocalΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | Β Β | Β Β |
Β Β | XxxxxΒ XxxxxΒ Floating RateΒ FundΒ Β | ClassesΒ Advisers,Β A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Floating RateΒ AdvantageΒ FundΒ Β | ClassesΒ Advisers,Β A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Floating RateΒ &Β HighΒ IncomeΒ FundΒ Β | ClassesΒ Advisers,Β A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ GlobalΒ DividendΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ GlobalΒ MacroΒ AbsoluteΒ ReturnΒ FundΒ Β Β Β | ClassesΒ A,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ GlobalΒ MacroΒ AbsoluteΒ ReturnΒ AdvantageΒ FundΒ Β | ClassesΒ A,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ GovernmentΒ ObligationsΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ HighΒ IncomeΒ OpportunitiesΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ InternationalΒ Multi MarketΒ LocalΒ IncomeΒ FundΒ Β Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Large CapΒ CoreΒ ResearchΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ LowΒ DurationΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Multi StrategyΒ AbsoluteΒ ReturnΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Multi StrategyΒ AllΒ MarketΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ ParametricΒ StructuredΒ AbsoluteΒ ReturnΒ Fund*Β Β | Β Β |
Β Β | XxxxxΒ XxxxxΒ ParametricΒ StructuredΒ EmergingΒ MarketsΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ ParametricΒ StructuredΒ InternationalΒ EquityΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ StrategicΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ EquityΒ AssetΒ AllocationΒ FundΒ Β | ClassesΒ A,Β B,Β CΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ GlobalΒ DividendΒ IncomeΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ GrowthΒ FundΒ 1.1Β Β | ClassesΒ A,Β B,Β C,Β I,Β SΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ GrowthΒ FundΒ 1.2Β Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ InternationalΒ EquityΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ Multi CapΒ GrowthΒ FundΒ Β | ClassesΒ A,Β B,Β CΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ Small CapΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ Small CapΒ ValueΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ ValueΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ U.S.Β GovernmentΒ MoneyΒ MarketΒ FundΒ Β | ClassesΒ A,Β B,Β CΒ Β |
Β Β | ParametricΒ StructuredΒ CommodityΒ StrategyΒ FundΒ Β | IΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ SeriesΒ TrustΒ Β Β | XxxxxΒ XxxxxΒ Tax ManagedΒ GrowthΒ FundΒ 1.0Β Β | NoneΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ SeriesΒ TrustΒ IIΒ Β Β | XxxxxΒ XxxxxΒ IncomeΒ FundΒ ofΒ BostonΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β
Page 38
Β Β | XxxxxΒ XxxxxΒ ParametricΒ Tax ManagedΒ EmergingΒ MarketsΒ FundΒ Β | IΒ Β |
Β Β | Β Β | Β Β |
XxxxxΒ XxxxxΒ SpecialΒ InvestmentΒ Β Β | XxxxxΒ XxxxxΒ BalancedΒ FundΒ Β | ClassesΒ A,Β B,Β CΒ Β |
TrustΒ Β | XxxxxΒ XxxxxΒ CommodityΒ StrategyΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ DividendΒ BuilderΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ EnhancedΒ EquityΒ OptionΒ IncomeΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ EquityΒ AssetΒ AllocationΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ GreaterΒ IndiaΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ InvestmentΒ GradeΒ IncomeΒ FundΒ Β | ClassesΒ A,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Large CapΒ GrowthΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ Large CapΒ ValueΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ ParametricΒ OptionΒ AbsoluteΒ ReturnΒ StrategyΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ RealΒ EstateΒ FundΒ Β | ClassesΒ A,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Risk ManagedΒ EquityΒ OptionΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ ShortΒ TermΒ RealΒ ReturnΒ FundΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Small CapΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β I,Β RΒ Β |
Β Β | XxxxxΒ XxxxxΒ Small CapΒ ValueΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ SpecialΒ EquitiesΒ FundΒ Β | ClassesΒ A,Β B,Β C,Β IΒ Β |
Β Β | XxxxxΒ XxxxxΒ Tax AdvantagedΒ BondΒ StrategiesΒ RealΒ ReturnΒ FundΒ (notΒ Β | ClassesΒ A,Β C,Β IΒ Β |
Β | currentlyΒ offered)Β Β | Β |
Β
Page 39
SCHEDULE C
[Reserved]
Page 40
SCHEDULE D
Terms And Conditions Governing Use Of The BNYM System
SECTION 0.Β | GENERALΒ | |
Β | ||
0.1Β | Capitalized Terms. Capitalized terms not defined in this Schedule D shall have the meaning ascribed toΒ | |
them in the Main Agreement. Capitalized terms defined in this Schedule D shall have that meaning solely in thisΒ | ||
Schedule D and not in any other part of the Agreement unless expressly stated otherwise in a specific instance.Β | ||
References to Section numbers in this Schedule D shall mean Sections of this Schedule D unless expressly statedΒ | ||
otherwise in a specific instance. References to the "Agreement" in this Schedule D mean the Main Agreement andΒ | ||
this Schedule D.Β | Β | |
Β | ||
0.2Β | Purpose. BNYM utilizes some components of the BNYM System to perform the Core Services. ButΒ | |
BNYM does not utilize all components of the BNYM System to provide the Core Services. Some components ofΒ | ||
the BNYM System are maintained by BNYM and offered to customers solely to permit customers to access the dataΒ | ||
and information maintained in the BNYM System in connection with the Core Services and put it to additional uses.Β | ||
Consequently, the Company is given rights pursuant to this Schedule D (i) to access and use components of theΒ | ||
BNYM System, from the Company System (as defined in Section 2.7), to engage in activities that are separate andΒ | ||
distinct and apart from the activities engaged in by BNYM to provide the Core Services, and (ii) to authorize thirdΒ | ||
parties, the "Permitted Users", to access and use certain Component Systems to engage in activities that are alsoΒ | ||
separate and distinct and apart from the activities engaged in by BNYM to provide the Core Services. Such accessΒ | ||
and use of the BNYM System by the Company from the Company System and by Permitted Users may include theΒ | ||
ability to input data and information into the BNYM System that BNYM utilizes in performing the Core ServicesΒ | ||
but which is not required for BNYM to perform the Core Services. The foregoing activities by the Company andΒ | ||
Permitted Users represent services supplemental to the Core Services. This Schedule D governs solely thoseΒ | ||
supplemental activities engaged in by the Company and Permitted Users. No part of this Schedule D is intended toΒ | ||
apply to the use of the BNYM System by BNYM or by the Company in connection with BNYM's performance ofΒ | ||
the Core Services; only the Main Agreement is applicable to such use.Β | ||
Β | ||
SECTION 1.Β | CERTAIN DEFINITIONSΒ | |
Β | ||
"Authorized Person" means the officers and employees of Company and employees of Permitted Users who haveΒ | ||
been authorized by the Company in accordance with the applicable Documentation and procedures of BNYM toΒ | ||
access and use the Licensed System or specific Component Systems and in connection with such access and use toΒ | ||
be issued Security Codes (as defined at Section 2.6(b) below).Β | ||
Β | ||
"BNYM Web Application" means with respect to a relevant Component System the collection of electronicΒ | ||
documents and files, content, text, graphics, processes, functions, and software code, including, but not limited to,Β | ||
HTML and XML files, Java and JavaScript files, graphics files, animation files, data, technology, scripts, programs,Β | ||
interfaces and databases residing on a computer system maintained by or for BNYM, accessible via the Internet atΒ | ||
an Internet address furnished by BNYM for use of the particular Component System.Β | ||
Β | ||
"Company" means the Investment Company.Β | ||
Β | ||
"Company Data" means (i) data and information regarding each Fund and the shareholders and shareholderΒ | ||
accounts of each Fund which is inputted into the Licensed System and the content of records, files and reportsΒ | ||
generated or derived from such data and information by the Licensed System, and (ii) Company 22c-2 Data (asΒ | ||
defined in Section 6.16(a) of this Schedule D). (For clarification: With respect to the term "derived", Company DataΒ | ||
does not include management reports, summary reports, compliance reports, reports on the effectiveness of controlsΒ | ||
or any other types of reports containing aggregate data that the BNYM System derives from the Company Data andΒ | ||
the data of all other customers of BNYM for internal business purposes and that does not contain non-publicΒ | ||
personal information of investors in the Fund).Β |
Β
Page 41
"Company Web Application" means the collection of electronic documents and files, content, text, graphics,Β | |
processes, functions, and software code, including, but not limited to, HTML and XML files, Java and JavaScriptΒ | |
files, graphics files, animation files, data, technology, scripts, programs, interfaces and databases residing on aΒ | |
computer system maintained by or for the Company, connected to the Internet and utilized by the Company inΒ | |
connection with its use of a Component System as contemplated by applicable Documentation.Β | |
Β | |
"Component System" means, as of its relevant License Effective Date, each Listed System and each SupportΒ | |
Function that is part of the Licensed System and, subsequent to a relevant License Effective Date, such ListedΒ | |
Systems and Support Functions as they may be changed as provided in subsection (b) of the definition of LicensedΒ | |
System.Β | |
Β | |
"Copy", whether or not capitalized, means any paper, disk, tape, film, memory device, or other material or object onΒ | |
or in which any words, object code, source code or other symbols are written, recorded or encoded, whetherΒ | |
permanent or transitory.Β | |
Β | |
"Core Services" means the services described in the Main Agreement that BNYM is obligation to perform forΒ | |
Company (for clarification: excluding the products and services provided pursuant to this Schedule D).Β | |
Β | |
"Documentation" means any user manuals, reference guides, specifications, documentation, instruction materialsΒ | |
and similar recorded data and information, whether in electronic or physical output form, that BNYM makesΒ | |
available to, provides access to or provides to the Company, and that describe how the Licensed System is to beΒ | |
operated by users and set forth the features, functionalities, user responsibilities, procedures, commands,Β | |
requirements, limitations and capabilities of and similar information about the Licensed System.Β | |
Β | |
"Exhibit 1" means Exhibit 1 to this Schedule D.Β | |
Β | |
"General Upgrade" means (i) an Upgrade that BNYM in its sole and absolute discretion incorporates into theΒ | |
Licensed System at no additional fees or charges to Company, and (ii) an Upgrade that BNYM offers to incorporateΒ | |
into the Licensed System without charge or at such additional fees and charges as the parties shall agree in writingΒ | |
and that Company accepts for incorporation into the Licensed System.Β | |
Β | |
"Harmful Code" means any computer code intentionally designed to (a) disable, impair, delete, damage or corruptΒ | |
a computer processing system, computer network, computer service, a deliverable for any of the foregoing,Β | |
interface, data, files, software, storage media, or computer or electronic hardware or equipment; (b) impair in anyΒ | |
way the operation of any of the foregoing based on the elapsing of a period of time, advancement of a particular dateΒ | |
or other numeral (sometimes referred to as "time bombs," "time locks," or "drop dead" devices); or (c) permit a non-Β | |
authorized party to access, transmit or utilize, as appropriate, any computer processing system, computer network,Β | |
computer service, deliverable for any of the foregoing, interface, data, files, software, storage media, or computer orΒ | |
electronic hardware or equipment without proper consent, (sometimes referred to as "lockups," "traps," "accessΒ | |
codes," or "trap door" devices); or (d) any other similar harmful or hidden procedures, routines or mechanisms.Β | |
Β | |
"Intellectual Property Rights" means the legal rights, interests and protections afforded under applicable patent,Β | |
copyright, trademark, trade secret and other intellectual property laws.Β | |
Β | |
"License Effective Date" means, with respect to each Component System of the Licensed System that Company isΒ | |
given the right to access and use, the date as of which the Company is first given such right to access and use.Β | |
Β | |
"Licensed Services" means all functions performed by the Licensed System.Β | |
Β | |
"Licensed System" means, collectively:Β | |
Β | |
(a)Β | as of its applicable License Effective Date, any one or more of the of the following: (i) any Listed SystemΒ |
to which the Company is given access to and use of by BNYM in its entirety; and (ii) any "Support Function",Β | |
which is hereby defined to mean any system, subsystem, software, program, application, interface, process,Β | |
subprogram, series of commands or function, regardless of the degree of separability from or integration with aΒ | |
Listed Program, that Company is given access to and use of to support its utilization of a Listed System - itemsΒ |
Β
Page 42
within "Support Function" and this clause (ii) could be one or more parts of a Listed System or could be items whichΒ | |
exist apart from any Listed System but which are provided to support utilization of a Listed System.Β | |
Β | |
(b)Β | Updates, General Upgrades and Company Modifications (as defined at Section 2.16) to the Listed SystemsΒ |
included within clause (a)(i) above and the systems, subsystems, software, programs, applications, interfaces,Β | |
processes, subprograms, series of commands and functions included within clause (a)(ii) above.Β | |
Β | |
"Listed Systems" means the computer systems listed on Exhibit 1, whether mainframe systems, surround systems,Β | |
subsystems or component systems, and in the case of the NSCC and CMS means as well the separate and distinctΒ | |
component systems of NSCC and CMS that BNYM may give Company access to and use of at Company's requestΒ | |
in lieu of access to and use of the entire NSCC or CMS.Β | |
Β | |
"Main Agreement" means the part of this Agreement that commences on the first page and ends with but includesΒ | |
Schedule A, excluding Section 3(d) (which incorporates this Schedule D into the Agreement).Β | |
Β | |
"Marks" means trademarks, service marks and trade names as those terms are generally understood underΒ | |
applicable intellectual property laws and any other marks, names, words or expressions of a similar character.Β | |
Β | |
"Permitted User" means a person other than an employee of the Company who is authorized by the CompanyΒ | |
pursuant to and in accordance with Section 2.1(a)(ii) and all applicable Documentation to access and use one orΒ | |
more specific Component Systems, for the avoidance of doubt, this may include properly authorized employees ofΒ | |
Xxxxx Xxxxx Management, an affiliate of the Company.Β | |
Β | |
"Product Assistance" means assistance provided by BNYM personnel regarding the Licensed System, includingΒ | |
regarding its impact on other software, functionality, usage and integration.Β | |
Β | |
"Proprietary Items" means:Β | |
Β | |
(a)Β | (i) All contents of the Listed Systems, (ii) all systems, subsystems, software, programs, applications,Β |
interfaces, processes, subprograms, series of commands or functions, regardless of the degree of separability from orΒ | |
integration with a Listed Program, and whether or not part of a Listed Program, that BNYM may at any time provideΒ | |
any customer with access to and use of to support the customer's s utilization of a Listed System, including theΒ | |
Support Functions, (iii) all systems, subsystems, software, programs, applications, interfaces, processes,Β | |
subprograms, series of commands or functions which BNYM utilizes in providing any of the services, or engagingΒ | |
in any of the activities, contemplated by this Agreement, (iv) all systems, subsystems, software, programs,Β | |
applications, interfaces, processes, subprograms, series of commands or functions owned, leased, licensed orΒ | |
sublicensed by BNYM which interface with, provide data to or receive data from any of the foregoing, and (v) allΒ | |
updates, upgrades, revisions, modifications, refinements, releases, versions, instances, translations, enhancementsΒ | |
and improvements to and of all or any part of the foregoing, whether in existence on, or occurring prior to orΒ | |
subsequent to, the Effective Date (collectively, the "BNYM Software");Β | |
Β | |
(b)Β | all facilities, central processing units, nodes, equipment, storage devices, peripherals and hardware utilizedΒ |
by BNYM in connection with the BNYM Software (the "BNYM Equipment");Β | |
Β | |
(c)Β | all documentation materials relating to the BNYM Software, including materials describing functions,Β |
capabilities, dependencies and responsibilities for proper operation of the Licensed System, including theΒ | |
Documentation, and all updates, upgrades, revisions, modifications, refinements, releases, versions, translations,Β | |
enhancements and improvements to or of all or any part of foregoing (the "BNYM Documentation", and togetherΒ | |
with the BNYM Software and the BNYM Equipment, the "System" or the "BNYM System") and all versions of theΒ | |
BNYM System as they may exist after the Effective Date or may have existed at any time prior to the EffectiveΒ | |
Date;Β | |
Β | |
(d)Β | all methods, concepts, visual expressions, screen formats, file and report formats, interactivity techniques,Β |
engine protocols, models and design features used in the BNYM System;Β | |
Β | |
(e)Β | source code and object code for all of the foregoing, as applicable;Β |
Β
Page 43
(f)Β | all derivative works, inventions, discoveries, patents, copyrights, patentable or copyrightable items andΒ | |
trade secrets prepared or furnished by or for BNYM in connection with the performance of the services or inΒ | ||
connection with any activities of the parties related to this Agreement;Β | ||
Β | ||
(g)Β | all materials related to the testing, implementation, support and maintenance of all of the foregoing;Β | |
Β | ||
(h)Β | all other documentation, manuals, tutorials, guides, instructions, policy and procedure documents and otherΒ | |
materials in any recorded medium prepared or furnished by or for BNYM in connection with the performance of theΒ | ||
Licensed Services or in connection with any activities of the parties related this Agreement;Β | ||
Β | ||
(i)Β | the contents of all databases and other data and information of whatsoever nature in the BNYM System,Β | |
other than Company Data, whether residing in the BNYM System or existing outside the BNYM System in recordedΒ | ||
form whether in hardcopy, electronic or other format; andΒ | ||
Β | ||
(j)Β | all copies of any of the foregoing in any form, format or medium.Β | |
Β | ||
"Terms of Use" means any privacy policy, terms of use or other terms and conditions made applicable by BNYM inΒ | ||
connection with the Company's or a Permitted User's access to and use of a Component System or a BNYM WebΒ | ||
Application or other access site or access method.Β | ||
Β | ||
"Third Party Products" means the products or services of parties other than BNYM that constitute part of theΒ | ||
Licensed System.Β | ||
Β | ||
"Third Party Provider" means licensors, subcontractors and suppliers of BNYM furnishing the Third PartyΒ | ||
Products.Β | Β | |
Β | ||
"United States" means the states and the District of Columbia of the United States.Β | ||
Β | ||
"Update" means a modification to a Component System necessary to maintain the operation of the ComponentΒ | ||
System in compliance with the Documentation in effect as of the Component System's applicable License EffectiveΒ | ||
Date and includes without limitation modifications correcting any design or operational errors in the ComponentΒ | ||
System and modifications enabling the Component System to be operated in any revised operating environmentΒ | ||
issued by BNYM and excludes Upgrades.Β | ||
Β | ||
"Upgrade" means an enhancement to a Component System as it exists on its applicable License Effective Date,Β | ||
new features and new functionalities added to the Component System as it exists on its applicable License EffectiveΒ | ||
Date, and all revisions, modifications, refinements, releases, enhancements and improvements to a ComponentΒ | ||
System as it exists on its applicable License Effective Date which change the operation of Component System ratherΒ | ||
than just bring it into compliance with the applicable Documentation.Β | ||
Β | ||
SECTION 2.Β | LICENSED RIGHTS AND COMPANY OBLIGATIONSΒ | |
Β | ||
2.1Β | Licensed Rights.Β | |
Β | ||
(a)Β | (i)Β | BNYM hereby grants to Company a limited, nonexclusive, nontransferable license to access andΒ |
use the Licensed System in the United States through its employees (other than as expressly permitted otherwise byΒ | ||
Section 2.1(a)(ii) below), solely in accordance with applicable Documentation, through the interfaces andΒ | ||
telecommunication lines designated by BNYM, strictly for the business purposes of the Company, solely in supportΒ | ||
of the Core Services and solely for so long as any applicable fees are paid by Company.Β | ||
Β | ||
Β | (ii)Β | The license granted by Section 2.1(a)(i) includes, where such access and use is expresslyΒ |
contemplated by the Documentation applicable to a particular Component System to which the Company has beenΒ | ||
given access and use, the right to authorize persons not employees of the Company to access and use in the UnitedΒ | ||
States the specified Component System strictly in compliance with applicable Documentation, through the interfacesΒ | ||
and telecommunication lines designated by BNYM, solely in support of the Core Services and solely for so long asΒ |
Β
Page 44
any applicable fees are paid by Company. Except with respect to Fund shareholders seeking to access IAM, toΒ | |
exercise the right contained in this Section 2.1(a)(ii) the Company must complete system access forms provided byΒ | |
BNYM, furnish any information reasonably requested by BNYM and otherwise cooperate in complying withΒ | |
reasonable system access procedures established by BNYM. Access to IAM for Fund shareholders shall occur inΒ | |
accordance with the Documentation applicable to IAM. Upon the exercise by Company of the right contained inΒ | |
this Section 2.1(a)(ii), the term Company shall be redefined for all purposes of this Agreement to mean theΒ | |
Company and all Permitted Users, individually and collectively, unless in an individual case the context clearlyΒ | |
requires that the definition be restricted solely to the Company.Β | |
Β | |
(b)Β | BNYM hereby grants to each of the Company, through its officers, and Xxxxx Xxxxx Management ("XxxxxΒ |
Xxxxx") as a Permitted User, through its employees, a limited, nonexclusive, nontransferable license to access andΒ | |
use the Licensed System and Documentation from outside the United States, solely in accordance with applicableΒ | |
Documentation, by first establishing connectivity with the computer system of Company or Xxxxx XxxxxΒ | |
Management located in the United States, and accessing and using the Licensed System through such connectionΒ | |
and through the interfaces and telecommunication lines designated by BNYM for the access and use by theΒ | |
Company in the United States pursuant to Section (a)(i), strictly for the internal business purposes of the CompanyΒ | |
and Xxxxx Xxxxx, solely in support of the Core Services and solely for so long as any applicable fees are paid byΒ | |
Company, provided the Company or Xxxxx Xxxxx gives at least thirty (30) days advance notice of such to BNYMΒ | |
and BNYM consents in writing (an email is writing for this purpose) to the access and use. BNYM may notΒ | |
unreasonably withhold or delay such consent. It shall be reasonable for BNYM to withhold such consent if in itsΒ | |
reasonable judgment such access and use (A) would involve the export of Proprietary Items other than theΒ | |
Documentation, (B) would subject BNYM to taxation or other liabilities in a jurisdiction outside the United States,Β | |
(C) would be a violation of any applicable law, regulation, order or other legal authority, or (D) would occur in aΒ | |
"Prohibited Country", which is hereby defined to be Cuba, Iran, Libya, North Korea, Sudan, Syria and any otherΒ | |
country that by action of the US Government (by Executive Order or other binding Presidential pronouncement, byΒ | |
law or by action taken by any agency, unit, department or instrumentality of the US Government) becomes (i)Β | |
subject to US export controls for anti-terrorism reasons, or (ii) a country with which US citizens are prohibited fromΒ | |
engaging in financial or other transactions. BNYM hereby waives advance notice of and consents to access and useΒ | |
from the United Kingdom or Ireland. BNYM may revoke a consent it has given in or pursuant to this Section 2.1(b)Β | |
upon notice to the Company or Xxxxx Xxxxx if in its reasonable judgment it determines that any one of theΒ | |
circumstances described in clauses (A) through (D) above have become applicable to particular access and use fromΒ | |
outside the United States. For clarification: the license granted by this Section 2.1(b) does not include the right toΒ | |
authorize persons who are not officers of the Company and not employees of Xxxxx Xxxxx to access and use theΒ | |
Licensed System.Β | |
Β | |
(c)Β | The Company shall be responsible and liable for compliance by Permitted Users with all applicable termsΒ |
of the Agreement as if the Permitted Users were its own employees. Upon termination of the Main Agreement, allΒ | |
authorizations of Permitted Users by the Company immediately shall be terminated by BNYM. Company may not,Β | |
and shall not under any circumstances grant sublicenses to any right granted by this Section 2.1 or subcontract orΒ | |
delegate any right granted by this Section 2.1 or use the Licensed System to provide services to third parties, otherΒ | |
than shareholders of its Funds, or for any other purpose other than that described in Sections 2.1(a) and (b).Β | |
Β | |
(d)Β | The grant of rights in this Section 2.1 shall be construed narrowly. No grant of license is made hereunderΒ |
to Company or any other party, except the license to Company expressly provided in this Section 2.1. The rightsΒ | |
granted by this Section 2.1 shall immediately terminate without further action required on anyone's part, includingΒ | |
without prior notification, upon the termination or expiration of the Agreement. BNYM and its licensors reserve allΒ | |
rights in the BNYM System not expressly granted to Company in this Section 2.1. Nothing in this Section 2.1 shallΒ | |
be construed to give Company rights of any nature in source code. The rights granted to Company by this SectionΒ | |
2.1 are sometimes referred to herein as the "Licensed Rights".Β | |
Β | |
(e)Β | For clarification:Β |
Β | |
Β | Company may be given access to and use of a Listed System which contains integration points or links toΒ |
one or more Support Functions that are part of a Listed System to which the Company has not been given access andΒ | |
use ("Linked Functions"). The Licensed Rights granted by this Section 2.1 to access and use a particular ListedΒ | |
System containing integration points or links to Linked Functions includes the right to access and use such LinkedΒ |
Β
Page 45
Functions, does not include the right to use the entire Listed System containing the Linked Functions or otherΒ | |
subsystems, software, programs, applications, interfaces, processes, subprograms, series of commands or functionsΒ | |
in that Listed System. To the extent exercise of Licensed Rights hereunder inadvertently or otherwise results inΒ | |
access to or use of a Component System or other system, subsystem, software, program, application, interface,Β | |
process, subprogram, series of commands or function which is not part of the its Licensed System, all terms of thisΒ | |
Agreement shall apply to such access and use.Β | |
Β | |
2.2Β | Documentation. Company shall use the Licensed System solely and strictly in accordance and complianceΒ |
with the Documentation provided or made available to Company by BNYM from time to time and anyΒ | |
specifications contained therein. Company may use only the number of copies of the Documentation that areΒ | |
provided to Company and may not make any additional copies of such Documentation, except that Company mayΒ | |
copy the Documentation to the extent reasonably necessary for use in training, routine backup and disaster recoveryΒ | |
purposes and upon request of an applicable regulatory authority. Company shall pay BNYM such fees as it hasΒ | |
established for copies of the Documentation, if any, as listed in the Fee Agreement.Β | |
Β | |
2.3Β | Third Party Software and Services. Company acknowledges that Third Party Products may constitute partΒ |
of the Licensed System. Companyβs use of Third Party Products shall be subject to the terms and conditions of thisΒ | |
Agreement; provided, however, access, use, maintenance and support of Third Party Products made available toΒ | |
Company after an applicable License Effective Date may be conditioned upon Companyβs execution of anΒ | |
agreement with the applicable Third Party Provider ("Third Party Agreement") which would provide for certainΒ | |
rights and obligations between the Company and the Third Party Provider ("Direct Third Party Product"), in whichΒ | |
case the terms of the Third Party Agreement will also apply to Company's use of the particular Third Party Product.Β | |
Notwithstanding the foregoing sentences of this Section 2.3, Company acknowledges that BNYM is not responsibleΒ | |
for, nor does BNYM warrant the performance or other features of, nor can it fix errors or defects in, third partyΒ | |
software and services and BNYMβs sole obligation with respect to third party software and services is to inform theΒ | |
third party of any errors, defects, deficiencies or other matters regarding the third party software and services ofΒ | |
which BNYM is made aware by Company.Β | |
Β | |
2.4Β | Compliance With Applicable Law. Company shall comply with all laws, regulations, rules and orders ofΒ |
whatsoever nature of governmental bodies and authorities (whether legislative, executive, independent, self-Β | |
regulatory or otherwise) applicable to the business or activities in connection with which it utilizes the LicensedΒ | |
System.Β | Β |
Β | |
2.5Β | Responsibility For Use.Β |
Β | |
(a)Β | The Company alone will be responsible for furnishing, or arranging for a third party to furnish, all data andΒ |
information required by the Documentation and the specifications therein for the Licensed System to function andΒ | |
perform in accordance with the Documentation, other than the data and information residing in the Licensed SystemΒ | |
in connection with BNYM's performance of the Core Services. BNYM shall have no liability or responsibility forΒ | |
any Loss caused in whole or in part by the Company's or a Permitted User's exercise of the Licensed Rights or use ofΒ | |
the Licensed System or by data or information of any nature inputted into the Licensed System by or under theΒ | |
direction or authorization of Company or a Permitted User; provided, however, this Section 2.5 shall not relieveΒ | |
BNYM of its obligation to act in accordance with the Standard Of Care with respect to the services described inΒ | |
Section 3 of the Main Agreement. Company shall be responsible and solely liable for the cost or expense ofΒ | |
regenerating any output or other remedial action if the Company, a Permitted User or an agent of either shall haveΒ | |
failed to transmit properly and in the correct format any data or information, shall have transmitted erroneous orΒ | |
incorrect information or data, or shall have failed to timely verify or reconcile any such data or information when itΒ | |
is generated by the System ("Data Faults").Β | |
Β | |
(b)Β | Company agrees to that is will make a good faith effort to ensure that the data transmitted to the LicensedΒ |
System by or under the direction or authorization of Company or Permitted Users will not disrupt, disable, harm, orΒ | |
otherwise impede in any manner the operation of the Licensed System or any associated software, firmware,Β | |
hardware, or BNYM computer system or network.Β | |
Β | |
2.6Β | Internal Control Obligations.Β |
Β
Page 46
(a)Β | Company shall adopt and implement commercially reasonable internal control procedures regarding the useΒ |
of the Licensed System, which internal control procedures shall be reasonably designed to ensure that any use of theΒ | |
Licensed System complies with (i) Sections 2.1, 2.2, 2.6, 2.12, 2.17, 2.20 and 3.4 of this Schedule D, and (ii)Β | |
applicable Documentation.Β | |
Β | |
(b)Β | Company shall establish and adhere to security policies and procedures intended to (i) safeguard theΒ |
System from unauthorized or improper access and use from equipment utilized by the Company, (ii) safeguard theΒ | |
integrity and validity of any user identifications, access passwords, mnemonics and other security data elementsΒ | |
related to accessing the Licensed System or any Component System ("Security Codes"), and (iii) preventΒ | |
unauthorized access to and protect electronically stored, processed or transmitted information. Such policies andΒ | |
procedures shall be at least equal to industry standards and any higher standard agreed upon by the Parties.Β | |
Β | |
(c)Β | Unless Company obtains prior written permission from BNYM, Company shall permit only AuthorizedΒ |
Persons to use Security Codes assigned to or selected by Company with respect to the Licensed System. TheΒ | |
Security Codes shall constitute Confidential Information of both Company and BNYM under the Agreement subjectΒ | |
to all obligations thereunder, and Company shall not permit access to Security Codes to any person other thanΒ | |
Authorized Persons. Company shall notify BNYM immediately if Company has reason to believe that any personΒ | |
who is not an Authorized Person has obtained access to a Security Code or accessed or used the Licensed System,Β | |
that an Authorized Person has accessed or used the Licensed System using Security Codes not assigned to thatΒ | |
Authorized Person, that any other loss of confidentiality with respect to a Security Code has occurred or the securityΒ | |
of the Licensed System has otherwise been breached.Β | |
Β | |
(d)Β | Company shall verify and confirm all information entered on the Licensed System and shall notify BNYMΒ |
of any error in any information entered on the Licensed System as soon as practicable following CompanyβsΒ | |
knowledge of such error.Β | |
Β | |
(e)Β | Company will not recirculate, redistribute or otherwise retransmit or re-rout the Licensed System to anyΒ |
third party or authorize the use of any information included on the Licensed System on any equipment or display notΒ | |
authorized by BNYM without BNYMβs prior express written approval.Β | |
Β | |
2.7Β | Company Resources.Β |
Β | |
(a)Β | Company will be solely responsible, at Company's expense, for procuring, maintaining, and supporting allΒ |
third-party software and all workstations, personal computers, printers, controllers or other hardware or peripheralΒ | |
equipment at Company's sites ("Company System") required for Company to operate the Licensed System inΒ | |
accordance with the Documentation and specifications provided by BNYM from time to time. BNYM will provideΒ | |
Company with specifications for Company System, including any requirements relating to the connection andΒ | |
operation of Company System with the Licensed System and Third Party Products. Company shall conform itsΒ | |
operating system environment to the operating system requirements provided by BNYM for the Licensed System.Β | |
Company will support and maintain Company's System as necessary to ensure its operation does not impact theΒ | |
Licensed System adversely or otherwise in a manner not contemplated by the Documentation.Β | |
Β | |
(b)Β | Company shall, at its own expense, devote such of the Company System and other equipment, facilities,Β |
personnel and resources reasonably necessary to (a) implement the Licensed System, (b) be trained in the use of theΒ | |
Licensed System, (c) perform timely any electrical work and cable installation necessary for Companyβs use of theΒ | |
Licensed System, and (d) begin using the Licensed System on a timely basis. BNYM shall not be responsible forΒ | |
any delays or fees and costs associated with Companyβs failure to timely perform its obligations under this SectionΒ | |
2.7.Β | Β |
Β | |
2.8Β | Company Telecommunications and Data Transmissions. Company will be solely responsible forΒ |
complying at all times with telecommunications requirements designated by BNYM for use of the Licensed System.Β | |
Any data or information electronically transmitted by or on behalf of Company to the Licensed System will be soΒ | |
transmitted solely and exclusively in the format specified by BNYM.Β | |
Β | |
2.9Β | [Reserved]Β |
Β
Page 47
2.10Β | Certifications and Audits. Company shall promptly complete and return to BNYM any certificationsΒ |
which BNYM in its sole discretion may from time to time send to Company, certifying that Company is using theΒ | |
Licensed System in compliance with all material terms and conditions set forth in this Agreement. BNYM may, atΒ | |
its expense and after giving reasonable advance written notice to Company, enter Company locations during normalΒ | |
business hours and audit Companyβs utilization of the Licensed System, the number of copies of the DocumentationΒ | |
in Company's possession, and the scope of use and information pertaining to Company's compliance with theΒ | |
provisions of this Agreement. The foregoing right may be exercised directly by BNYM or by delegation to anΒ | |
independent auditor acting on its behalf.Β | |
Β | |
2.11Β | Taxes. The amounts payable by Company to BNYM in consideration of the performance of services byΒ |
BNYM under the Agreement, including providing access to and use of the Licensed System pursuant to thisΒ | |
Schedule D, do not include, and Company will timely pay, all federal, state and local taxes based on Company's useΒ | |
of the Licensed System or receipt of Documentation (including sales, use, excise and property taxes), if any,Β | |
assessed or imposed in connection therewith, excluding any taxes imposed upon BNYM based upon BNYM's netΒ | |
income. BNYM undertakes to inform the Company of any such tax promptly upon receiving notification from anyΒ | |
taxing jurisdiction.Β | |
Β | |
2.12Β | Use Restrictions.Β |
Β | |
(a)Β | Company will not do or attempt to do, and Company will not knowingly permit any other person or entityΒ |
to do or attempt to do, any of the following, directly or indirectly:Β | |
Β | |
(i)Β | use any Proprietary Item for any purpose, at any location or in any manner not specifically authorized byΒ |
Β | this Agreement;Β |
(ii)Β | make or retain any copy of any Proprietary Item except as specifically authorized by this Agreement;Β |
(iii)Β | create, recreate or obtain the source code for any Proprietary Item;Β |
(iv)Β | refer to or otherwise use any Proprietary Item as part of any effort to develop other software, programs,Β |
Β | applications, interfaces or functionalities or to compete with BNYM or a Third Party Provider;Β |
(v)Β | modify, adapt, translate or create derivative works based upon any Proprietary Item, or combine or mergeΒ |
Β | any Proprietary Item or part thereof with or into any other product or service not provided for in thisΒ |
Β | Agreement and not authorized in writing by BNYM;Β |
(vi)Β | remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, orΒ |
Β | encoded or recorded in any Proprietary Item, or fail to preserve all copyright and other proprietary noticesΒ |
Β | in any copy of any Proprietary Item made by Company;Β |
(vii)Β | sell, transfer, assign or otherwise convey in any manner any ownership interest or Intellectual PropertyΒ |
Β | Right of BNYM, or market, license, sublicense, distribute or otherwise grant, or subcontract or delegate toΒ |
Β | any other person, including outsourcers, vendors, consultants, joint venturers and partners, any right toΒ |
Β | access or use any Proprietary Item, whether on Company's behalf or otherwise;Β |
(viii)Β | subcontract for or delegate the performance of any act or function involved in accessing or using anyΒ |
Β | Proprietary Item, whether on Company's behalf or otherwise;Β |
(ix)Β | reverse engineer, re-engineer, decrypt, disassemble, decompile, decipher, reconstruct, re-orient or modifyΒ |
Β | the circuit design, algorithms, logic, source code, object code or program code or any other properties,Β |
Β | attributes, features or constituent parts of any Proprietary Item;Β |
(x)Β | take any action that would challenge, contest, impair or otherwise adversely effect an ownership interest orΒ |
Β | Intellectual Property Right of BNYM, provided, however, that the foregoing shall not be construed toΒ |
Β | impair Companyβs rights to define and defend intellectual property rights in Company Data;Β |
(xi)Β | use any Proprietary Item to provide remote processing, network processing, network communications, aΒ |
Β | service bureau or time sharing operation, or services similar to any of the foregoing to any person or entity,Β |
Β | whether on a fee basis or otherwise;Β |
(xii)Β | allow Harmful Code into any Proprietary Item, as applicable, or into any interface or other software orΒ |
Β | program provided by it to BNYM, through Company's systems or personnel or Company's use of theΒ |
Β | Licensed Services or Company's activities in connection with this Agreement.Β |
Β | |
(b)Β | Company shall, promptly after becoming aware of such, notify BNYM of any facts, circumstances orΒ |
events regarding its or a Permitted User's use of the Licensed System that are reasonably likely to constitute or resultΒ |
Β
Page 48
in a breach of this Section 2.12, and take all reasonable steps requested by BNYM to prevent, control, remediate orΒ | |
remedy any such facts, circumstances or events or any future occurrence of such facts, circumstances or events.Β | |
Β | |
2.13Β | Restricted Party Status. Company warrants at all times that it is not a "Restricted Party", which shall beΒ |
defined to mean any person or entity: (i) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, orΒ | |
any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons orΒ | |
with which U.S. persons are generally prohibited from engaging in financial transactions; (ii) on the U.S.Β | |
Department of Commerce Denied Personβs List, Entity List, or Unverified List; U.S. Department of the Treasury listΒ | |
of Specially Designated Nationals and Blocked Persons; or U.S. Department of State List of Debarred Parties; (iii)Β | |
engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation ofΒ | |
chemical or biological weapons; (iv) affiliated with or a part of any non-U.S. military organization, or (v) designatedΒ | |
by the U.S. Government to have a status equivalent to any of the foregoing. If Company becomes a RestrictedΒ | |
Person during the term of this Agreement, the Licensed Rights shall terminate immediately without notice andΒ | |
Company shall have no further rights to use the Licensed System.Β | |
Β | |
2.14Β | Mitigation Measures. Company shall take commercially reasonable measures (except measures causing itΒ |
to incur out-of-pocket expenses which BNYM does not agree in advance to reimburse) to mitigate losses or potentialΒ | |
losses to BNYM, including taking verification, validation and reconciliation measures that are commerciallyΒ | |
reasonable or standard practice in the Company's business.Β | |
Β | |
2.15Β | Company Dependencies. To the extent an obligation of BNYM under this Schedule D is dependent andΒ |
contingent upon Company's or Permitted User's performance of an action or refraining from performing an actionΒ | |
that has been specified or described in this Schedule D or the Documentation or that is part of practices andΒ | |
procedures which are commercially reasonable or standard in the user's industry ("Company Dependency"),Β | |
BNYM shall not be liable for Loss to the extent caused by or resulting from, or that could have been avoided but for,Β | |
a failure to properly perform or a delay in properly performing a Company Dependency and BNYM's obligation toΒ | |
perform an obligation contemplated by this Agreement shall be waived or delayed to the extent the performance ofΒ | |
the related Company Dependency is not properly performed or is delayed, provided that any failure to properlyΒ | |
perform or a delay in properly performing a Company Dependency is not the result of BNYMβs failure to act inΒ | |
accordance with its obligations under the Main Agreement or this Schedule D.Β | |
Β | |
2.16Β | Software Modifications. Company may request that BNYM, at Company's expense, developΒ |
modifications to the software constituting a part of the Licensed System that BNYM generally makes available toΒ | |
customers for modification ("Software") that are required to adapt the Software for Companyβs unique businessΒ | |
requirements. Such requests, containing the material features and functionalities of all such modifications inΒ | |
reasonable detail, will be submitted by Company in writing to BNYM in accordance with the applicable,Β | |
commercially reasonable procedures maintained by BNYM at the time of the request. Company shall be solelyΒ | |
responsible for preparing, reviewing and verifying the accuracy and completeness of the business specifications andΒ | |
requirements relied upon by BNYM to estimate, design and develop such modifications to the Software. BNYMΒ | |
shall have no obligation to develop modifications to the Licensed System requested by Company, but may in itsΒ | |
discretion agree to develop requested modifications which it, in its sole discretion, reasonably determines it canΒ | |
accomplish with existing resources or with readily obtainable resources without disruption of normal businessΒ | |
operations provided Company agrees at such time in writing to pay all costs and expenses, including out-of-pocketΒ | |
expenses, associated with the customized modification. BNYM shall be obligated to develop modifications underΒ | |
this Section 2.16 only upon the execution of and in accordance with a writing containing, to BNYM's reasonableΒ | |
satisfaction, all necessary business and technical terms, specifications and requirements for the modification asΒ | |
determined by BNYM in its sole judgment ("Customization Order") and Company's agreement to pay all costs andΒ | |
expenses, including out-of-pocket expenses, associated with the customized modification ("Customization FeeΒ | |
Agreement"). All modifications developed and incorporated into the Licensed System pursuant to a CustomizationΒ | |
Order are referred to herein as "Company Modifications". BNYM may make Company Modifications available toΒ | |
all users of the Licensed System, including BNYM, at any time after implementation of the particular CompanyΒ | |
Modification and any entitlement of Company to reimbursement on account of such action must be contained in theΒ | |
Customization Fee Agreement.Β | |
Β | |
2.17Β | Export of Software. Except as expressly provided otherwise by Section 2.1(b):Β |
Β
Page 49
The Company and Permitted Users are without exception prohibited from (i) accessing or using the BNYM SystemΒ | |
outside the United States, or (ii) exporting, transmitting, transferring or shipping any Proprietary Item to a country orΒ | |
jurisdiction outside the United States. No provision of the Agreement shall be interpreted to require BNYM toΒ | |
permit access or use outside the United States or to export any Proprietary Item to a country or jurisdiction outsideΒ | |
the United States. The Company shall comply with all applicable export and re-export restrictions and regulations ofΒ | |
the U.S. Department of Commerce or other U.S. agency or authority and the Company may not transfer aΒ | |
Proprietary Item in violation of any such restrictions and regulations.Β | |
Β | |
2.18Β | Permitted Users Contemplated By Documentation. Notwithstanding any other provision of theΒ |
Agreement, to the extent Documentation applicable to a particular Component System contemplates that CompanyΒ | |
Data will be transmitted or transferred to a Permitted User outside the BNYM System, that Company Data will beΒ | |
made available within the BNYM System for retrieval by a Permitted User for use outside the BNYM System, thatΒ | |
the Company Data will be provided or made available to Permitted Users within the BNYM System for use by theΒ | |
Permitted User within the BNYM System or within a system of the Permitted User, or that the Company mayΒ | |
authorize Permitted Users to access and use Company Data contained within the Licensed System in any otherΒ | |
manner:Β | Β |
Β | |
(i)Β | Subject to Section 6.10, the Company hereby grants to BNYM a worldwide, royalty-free, non-exclusive,Β |
Β | revocable, non-perpetual right and license to display the Company Data through any BNYM WebΒ |
Β | Application contemplated by the Documentation for the applicable Component System and herebyΒ |
Β | authorizes and directs BNYM, as appropriate, to transmit, transfer, make available and provide theΒ |
Β | Company Data to Permitted Users, as contemplated by the Documentation applicable to the particularΒ |
Β | Component System, including without limitation through the Internet or other communication link orΒ |
Β | method and a BNYM Web Application or other access site or method designated by BNYM for use of theΒ |
Β | particular Component System;Β |
Β | |
(ii)Β | The Company hereby authorizes and directs BNYM, (A) to permit Permitted Users to view and useΒ |
Β | Company Data within the Licensed System as contemplated by applicable Documentation, (B) to act onΒ |
Β | behalf of a shareholder in any way contemplated by applicable Documentation and authorized by theΒ |
Β | Company in accordance with applicable Documentation, including to effect purchases, sales, redemptions,Β |
Β | distributions, exchanges, transfers and other activities and to change the status, data or informationΒ |
Β | involving a shareholder account or assets in a shareholder account, and (C) to the extent contemplated byΒ |
Β | applicable Documentation, to permit Permitted Users to download and store, copy in on-line and off-lineΒ |
Β | form, reformat, perform calculations with, and distribute, publish, transmit, and display the Company DataΒ |
Β | in the systems of the Permitted User and to and through any relevant BNYM Web Application;Β |
Β | |
(iii)Β | The Company shall have sole responsibility for imposing any desired use restrictions on Permitted Users toΒ |
Β | the extent use restrictions are contemplated by the applicable Documentation and BNYM shall cooperate inΒ |
Β | a commercially reasonable manner in imposing such use restrictions to the extent the applicableΒ |
Β | Documentation contemplates a role for BNYM in imposing such use restrictions;Β |
Β | |
(iv)Β | The Company acknowledges and agrees that it alone is responsible for entering into agreements withΒ |
Β | Permitted Users with respect to the Permitted User's use of the Company Data; the Company releasesΒ |
Β | BNYM from any and all responsibility and duty for obtaining any such agreements, including agreementsΒ |
Β | relating to confidentiality and privacy of the data and information, and for any monitoring, supervision orΒ |
Β | inspection of Permitted Users of any nature; the Company releases BNYM from any Loss the CompanyΒ |
Β | may incur, and will indemnify and defend BNYM for any Loss it may incur, arising or resulting from or inΒ |
Β | connection with Company Data after BNYM, as appropriate, transmits, transfers, makes available orΒ |
Β | provides the Company Data to the Permitted User in accordance with applicable Documentation, whetherΒ |
Β | through a BNYM Web Application or otherwise;Β |
Β | |
(v)Β | The Company shall be responsible and liable to BNYM for the acts and omissions of Permitted Users whileΒ |
Β | accessing and using a Component System pursuant to authorization from the Company and shall indemnifyΒ |
Β | and defend BNYM for all Loss arising from or related to acts or omissions by a Permitted User that wouldΒ |
Β | constitute a breach of this Agreement if committed by the Company, that constitute reckless or intentionalΒ |
Β | misconduct or that constitute a breach of a duty of the Permitted User imposed by this Schedule D; andΒ |
Β
Page 50
(vi)Β | BNYM may immediately terminate access to and use of the Licensed System by a Permitted User ifΒ | |
Β | BNYM reasonably believes conduct of the Permitted User would constitute a material breach of thisΒ | |
Β | Agreement if committed by the Company, constitutes reckless or intentional misconduct, or constitutes aΒ | |
Β | breach of a duty of the Permitted User imposed by this Schedule D, applicable Documentation orΒ | |
Β | applicable Terms of Use.Β | |
Β | ||
2.19Β | Communications with Third Parties regarding Component System Services. The Company shall beΒ | |
solely responsible for communicating with third parties to the extent such is reasonably required for services to beΒ | ||
provided in accordance with the Documentation for the particular Component System.Β | ||
Β | ||
2.20Β | Compliance with Terms Of Use. The Company's and, to the extent applicable in connection with aΒ | |
particular Component System, each Permitted User's use of a Component System, a BNYM Web Application andΒ | ||
any other access site or access method to a particular Component System shall be conducted in full compliance withΒ | ||
applicable Terms of Use. In addition, Permitted Users shall be required to comply with requirements set forth inΒ | ||
applicable Documentation, including requirements relating to Security Codes, as a condition to use of particularΒ | ||
Component Systems.Β | Β | |
Β | ||
2.21Β | Third Party Providers To The Company. The Company shall have sole responsibility to maintain throughΒ | |
itself or its agents all agreements with third party providers that may be appropriate for use of a Component SystemΒ | ||
and to pay as they come due all fees and charges associated with such agreements either directly or as passedΒ | ||
through on invoices of BNYM.Β | ||
Β | ||
2.22Β | Fees. The Company shall be obligated to pay to BNYM such fees and charges for access and use of anyΒ | |
part of the Licensed System as may be set forth in the Fee Agreement and such fees and charges shall be paid inΒ | ||
accordance with any applicable provisions set forth in the Main Agreement.Β | ||
Β | ||
SECTION 3.Β | PROVISIONS REGARDING BNYMΒ | |
Β | ||
3.1Β | Right to Modify. BNYM may alter, modify or change the Licensed System or any component, code,Β | |
language, format, design, architecture or element of the Licensed System and present such alterations, modificationsΒ | ||
and changes to Company as Updates or Upgrades; provided, however, at no time shall this section be interpreted inΒ | ||
such a manner as to allow BNYM by such alterations, modifications or changes to fail to comply with any term ofΒ | ||
this Schedule D. Notwithstanding Section 3.2 below, BNYM shall be responsible for training the Company withΒ | ||
respect to any such Updates and Upgrades at no cost to the Company.Β | ||
Β | ||
3.2Β | Training and Product Assistance. BNYM agrees to use commercially reasonable efforts to provideΒ | |
requested training and Product Assistance for Company's personnel at BNYMβs facilities or at Company's facilitiesΒ | ||
in connection with access to and use of the Licensed System and subsequent Updates, as reasonably requested byΒ | ||
Company, at BNYM 's then-current charges and rates for such services. All reasonable travel and out-of-pocketΒ | ||
expenses incurred by BNYM personnel in connection with and during such training or Product Assistance shall beΒ | ||
borne by Company upon pre-approval in writing.Β | ||
Β | ||
3.3Β | Monitoring. BNYM is not responsible for Company's or Permitted User's use of the Licensed System butΒ | |
shall have the right to monitor such use on BNYMβs network solely to verify compliance with the terms andΒ | ||
conditions set forth herein and for operational purposes related to the delivery of services by the Licensed System.Β | ||
Β | ||
3.4Β | Additional Security Measures. BNYM shall have the right to institute and require additional securityΒ | |
measures in connection with Company's and Permitted User's access to and use of the Licensed System that it in itsΒ | ||
sole discretion determines to be appropriate under the circumstances upon reasonable advance notice, and CompanyΒ | ||
and Permitted Users shall be required to comply with any additional security requirements adopted pursuant to thisΒ | ||
Section 3.4.Β | Β | |
Β | ||
3.5Β | BNYM Failure to Receive Data. BNYM shall not be liable for data or information which the Company, aΒ | |
Permitted User or an agent of either transmits or attempts to transmit to BNYM in connection with its use of aΒ | ||
Component System and which is not received by BNYM or for any failure of a Component System to perform aΒ |
Β
Page 51
function in connection with any such data or information. BNYM shall not be obligated to ascertain the accuracy,Β | ||
actual receipt by it or successful transmission to it of any data or information in connection with the Company's or aΒ | ||
Permitted User's use of a Component System or to confirm the performance of any function by a Component SystemΒ | ||
based on the transmission of instructions, data or information to BNYM in connection with such use by theΒ | ||
Company or a Permitted User. Sole responsibility for the foregoing shall rest with the party initiating theΒ | ||
transmission. For clarification: (i) Consistent with Section 0.2 (Purpose), this Section 3.5 does not apply to BNYM'sΒ | ||
receipt of data or information in connection with any service BNYM is obligated to perform pursuant to the MainΒ | ||
Agreement; the provisions of the Main Agreement alone apply to such services, and (ii) without limiting theΒ | ||
generality of clause (i), with respect to files that are customarily received in the ordinary course of business fromΒ | ||
third party sources identified in advance to BNYM by the Company and acknowledged by BNYM as to the contentΒ | ||
and timing of the files to be received from such third party sources, and upon such time as procedures are put inΒ | ||
place by BNYM to receive such files in the ordinary course of business, BNYM will employ commerciallyΒ | ||
reasonable measures to detect when such files are not received at the customary times, and upon detecting a file hasΒ | ||
not been received will employ commercially reasonable measures to obtain such file.Β | ||
Β | ||
3.6Β | ACH Activity. To the extent contemplated by the Documentation, and to the extent authorized by theΒ | |
Company and agreed to by BNYM in its sole discretion, BNYM will accept bank account information over theΒ | ||
Internet or other communication channel from Permitted Users and take such other actions as may be appropriate toΒ | ||
facilitate movement of money to and from shareholder accounts through the Automated Clearing House ("ACH").Β | ||
The Company shall be solely responsible for all market risk (gain/loss liability) associated with transactions utilizingΒ | ||
the ACH process, provided that BNYM maintains the ACH process in accordance with the standard of care requiredΒ | ||
under the Main Agreement.Β | ||
Β | ||
SECTION 4.Β | OWNERSHIP AND OTHER RIGHTSΒ | |
Β | ||
4.1Β | BNYM Ownership.Β | |
Β | ||
(a)Β | BNYM and its licensors, subcontractors and suppliers will continue to own all of their respective right,Β | |
title, and interest, including Intellectual Property Rights, in and to the BNYM System and the Proprietary Items,Β | ||
regardless of any participation, contributions, collaboration or other participation of the Company in or to theΒ | ||
foregoing, and including any part of the foregoing that may be created by or on behalf of, at the direction of orΒ | ||
pursuant to business requirements and other specifications provided by the Company, such as, but not limited to,Β | ||
Company Modifications. For purposes of clarification: the BNYM System and any modifications to the BNYMΒ | ||
System or a Proprietary Item, whether or not ordered or paid for by the Company as a customization, are notΒ | ||
intended to be and are not a "works made for hire" under Section 101 of the Copyright Act or under any otherΒ | ||
applicable law, remain proprietary to and the exclusive property of BNYM and accordingly Company herebyΒ | ||
transfers, conveys and assigns any ownership interests or intellectual property rights it may have in and toΒ | ||
Proprietary Items to BNYM. To the extent requested by BNYM, Company shall cooperate with BNYM, atΒ | ||
BNYM's expense, to cause to vest in BNYM any ownership interests or Intellectual Property Rights in any of theΒ | ||
forgoing that do not automatically vest in BNYM.Β | ||
Β | ||
(b)Β | In the event a Company Web Application contains a Proprietary Item or other intellectual property ofΒ | |
BNYM, including, but not limited to, rights in copyrighted works, trademarks and trade dress, BNYM shall retainΒ | ||
all rights in such Proprietary Item or other intellectual property. To the extent a Proprietary Item or other intellectualΒ | ||
property of BNYM is duplicated within a Company Web Application to replicate the βlook and feel,β βtrade dressβΒ | ||
or other aspect of the appearance or functionality of a BNYM Web Application or other component of the BNYMΒ | ||
System, BNYM grants to the Company a limited, non-exclusive, non-transferable license to such a Proprietary ItemΒ | ||
or other intellectual property for the duration of its authorized use of the applicable Component System. The licenseΒ | ||
granted by the foregoing sentence is limited to the intellectual property needed to replicate the appearance of theΒ | ||
particular BNYM Web Application or other component of the BNYM System and does not extend to any otherΒ | ||
Proprietary Item or other intellectual property owned by BNYM. Company shall immediately cease using suchΒ | ||
Proprietary Item or other intellectual property immediately upon termination of the Licensed Rights governing theΒ | ||
relevant Component System.Β | ||
Β | ||
(c)Β | This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, service xxxx, tradeΒ | |
secret, intellectual property or other ownership rights to any Proprietary Items are transferred to Company by virtueΒ |
Β
Page 52
of this Agreement. Upon BNYM's request, the Company shall promptly inform BNYM in writing of the quantityΒ | |
and location of any tangible Proprietary Item furnished to Company in connection with this Agreement. NothingΒ | |
contained in this Agreement, no disclosure of BNYM Confidential Information and no use of Proprietary ItemsΒ | |
hereunder shall be construed as granting to or conferring on Company any rights, by license or otherwise, for anyΒ | |
invention, discovery or improvement made, conceived, or acquired by BNYM prior to or after the date hereof. NoΒ | |
patent application that may hereafter be made, and no claim to any trade secret or other protection, shall beΒ | |
prejudiced by any disclosure of Confidential Information or use of Proprietary Items hereunder. Any sale,Β | |
assignment or transfer of any nature or in any manner, or any attempt to do such, by Company or any party throughΒ | |
Company of any ownership interest or Intellectual Property Right of BNYM in the Proprietary Items shall be void.Β | |
Any subcontracting or delegation of any right to access or use a Proprietary Item and any subcontracting for orΒ | |
delegation of the performance of any activities or functions involved in accessing or using a Proprietary Item shallΒ | |
be void and unenforceable against BNYM.Β | |
Β | |
4.2Β | Company Ownership. Company will own its respective right, title, and interest, including IntellectualΒ |
Property Rights, in and to the Company Data. Company hereby grants BNYM a limited, nonexclusive,Β | |
nontransferable, revocable (upon termination of the Agreement), non-perpetual license to access and use theΒ | |
Company Data, and consents to BNYM's permitting access to, transferring and transmitting Company Data, all asΒ | |
appropriate to Company's use of the Licensed Rights or as contemplated by the Documentation. No title, patent,Β | |
copyright, trademark, service xxxx, trade secret, intellectual property or other ownership rights to any CompanyΒ | |
Data are transferred to BNYM by virtue of this Agreement.Β | |
Β | |
4.3Β | Mutual Retention of Certain Rights. Each party acknowledges and agrees that, other than the LicensedΒ |
Rights provided for by Section 2.1 of this Schedule D, this Agreement does not give a party any right, title orΒ | |
interest in or to any ownership or other rights of the other party to property. Any software, interfaces or otherΒ | |
programs a party provides to the other party hereunder (i) shall be used solely by such receiving party and onlyΒ | |
during the term of the Agreement and only for the purpose it was provided and in accordance with the provisions ofΒ | |
this Agreement, and (ii) shall not be used by such party or any affiliate for any other purpose or to connect to or withΒ | |
any other person. To the extent the Intellectual Property Rights of one party are cached to expedite communication,Β | |
such party grants to the other party a limited, non-exclusive, non-transferable license to such Intellectual PropertyΒ | |
Rights for a period of time no longer than that reasonably necessary for the communication and a party shallΒ | |
immediately cease using such Intellectual Property Rights immediately upon termination of the Licensed RightsΒ | |
governing the relevant Component System.Β | |
Β | |
4.4Β | Use of Hyperlinks. To the extent use of hyperlinks is contemplated by the Documentation for a particularΒ |
Component System: The Company hereby grants to BNYM a royalty-free, nonexclusive, nontransferable andΒ | |
revocable right and license to use the Company's hyperlink in connection with the relevant Licensed Services;Β | |
BNYM hereby grants to the Company a royalty-free, nonexclusive, nontransferable and revocable right and licenseΒ | |
to use BNYM 's hyperlink in connection with providing the relevant Licensed Services; each party shall reasonablyΒ | |
cooperate with the other party concerning the placement, location and destination of such hyperlinks; and a partyΒ | |
shall immediately cease using another party's hyperlink immediately upon termination of the Licensed RightsΒ | |
governing the relevant Component System.Β | |
Β | |
4.5Β | Use of Marks. To the extent one party's Marks must be utilized by the other party in connection with theΒ |
operation of a particular Component System or the Licensed Services related to the particular Component System:Β | |
the Company hereby grants to BNYM a non-exclusive, limited license to use its Marks solely in connection with theΒ | |
Licensed Services provided by the Component System; BNYM hereby grants to the Company a non-exclusive,Β | |
limited license to use its Marks solely in connection with the Licensed Services provided by the Component System;Β | |
all use of Marks shall be in accordance with the granting party's reasonable policies regarding the advertising andΒ | |
usage of its Marks as established from time to time; the Company hereby grants BNYM the right and license toΒ | |
display the Companyβs Mark's on applicable BNYM Web Applications relating to the IAM and AdvisorCentralΒ | |
components; each party shall retain all right, title and interest in and to its Marks worldwide, including any goodwillΒ | |
associated therewith, subject to the limited license granted in this Section 4.5; use of the Marks hereunder by theΒ | |
grantee pursuant to this limited license shall inure to the benefit of the trademark owner and grantees shall take noΒ | |
action that is inconsistent with the trademark ownerβs ownership thereof; each party shall exercise reasonable effortsΒ | |
within commercially reasonable limits, to maintain all on-screen disclaimers and copyright, trademark and serviceΒ | |
xxxx notifications, if any, provided to it by the other party in writing from time to time, and all "point and click"Β |
Β
Page 53
features relating to Authorized Persons' acknowledgment and acceptance of such disclaimers and notifications; and aΒ | ||
party shall immediately cease using another party's Marks immediately upon termination of the Licensed RightsΒ | ||
governing the relevant Component System.Β | ||
Β | ||
SECTION 5.Β | REPRESENTATIONS, WARRANTIES & COVENANTS; INDEMNIFICATIONΒ | |
Β | ||
5.1Β | Mutual Representations, Warranties and Covenant. Each party warrants, represents and covenants to theΒ | |
other party that it will use commercially reasonable efforts to avoid engaging in any act, omission or conduct whichΒ | ||
would result in the introduction into the software or systems of the other party any computer software routines, codeΒ | ||
or programming devices designed to permit unauthorized persons to access or use the other party's software, systemsΒ | ||
or Confidential Information or data resident in the other party's systems or to disrupt, interfere, impair, reprogram,Β | ||
recode, disable, modify, destroy or damage the other party's software or systems or the operation thereof, any dataΒ | ||
resident in the other party's systems, or any party's lawful and valid access to or use of the other party's software orΒ | ||
systems, including without limitation any "back door," "time bomb," "Trojan horse," "worm," "drop dead device,"Β | ||
"virus", "preventative routine," "disabling code," or "cookie".Β | ||
Β | ||
5.2Β | Right to Grant Licensed Rights; No Infringement; BNYM Indemnification.Β | |
Β | ||
(a)Β | BNYM warrants to Company that BNYM has the full legal right to grant Company the right to use theΒ | |
Licensed System, as and to the extent permitted under this Agreement, and that the Licensed System when properlyΒ | ||
used for the purpose and in the manner specifically authorized by this Agreement, does not to BNYMβs knowledgeΒ | ||
infringe in any material respect upon any United States patent or copyright or any trade secret or other proprietaryΒ | ||
right of any person. BNYM shall defend and indemnify Company against any third party claim to the extentΒ | ||
attributable to a violation of the foregoing warranty. BNYM shall have no liability or obligation under this SectionΒ | ||
5.2 unless Company gives written notice to BNYM as promptly as practicable under the circumstances, but in noΒ | ||
event later than thirty (30) days (provided that later notice shall relieve BNYM of its liability and obligations underΒ | ||
this Section 5.2 only to the extent that BNYM is prejudiced by such later notice) after it receives notice of anyΒ | ||
applicable infringement claim against Company and allows BNYM to have control of the defense or settlement ofΒ | ||
the claim, subject to the agreement of the Company to any settlement that does not release the Company from allΒ | ||
liability. The remedies provided in this Section 5.2 are the sole remedies for a breach of the warranty contained inΒ | ||
this Section 5.2. If any applicable claim is initiated, or in BNYM's sole opinion is likely to be initiated, then BNYMΒ | ||
shall have the option, at its expense, to:Β | ||
Β | ||
(i)Β | modify or replace the Licensed System or the infringing part of the Licensed System so that the LicensedΒ | |
Β | System is no longer infringing; orΒ | |
Β | ||
(ii)Β | procure the right to continue using or providing the infringing part of the Licensed System; orΒ | |
Β | ||
(iii)Β | if neither of the remedies provided for in clauses (i) and (ii) can be accomplished in a commerciallyΒ | |
Β | reasonable fashion, limit or terminate the Licensed Rights with respect to the infringing part of theΒ | |
Β | Licensed System and refund any fees paid by the Company with respect to future periods affected by suchΒ | |
Β | limitation or termination.Β | |
Β | ||
(b)Β | Neither BNYM nor any Third Party Provider shall have any liability under any provision of this AgreementΒ | |
with respect to any performance problem, warranty, claim of infringement or other matter to the extent attributableΒ | ||
to (i) Companyβs use of a Proprietary Item in a negligent manner or any manner not consistent with this Schedule DΒ | ||
or Company's breach of this Schedule D; (ii) any modification or alteration of a Proprietary Item made by anyoneΒ | ||
other than BNYM or such Third Party Provider, or its agents, or made by BNYM at the request or direction of theΒ | ||
Company, (iii) BNYM's compliance with the instructions or requests of Company relating to a Proprietary Item; (iv)Β | ||
any combination of a Proprietary Item with any item, service, process or data not provided by BNYM, (v) thirdΒ | ||
parties gaining access to a Proprietary Item due to acts or omissions of Company, (vi) third party software notΒ | ||
recommended by BNYM or the use of open source software, (vii) Companyβs failure to license and maintain copiesΒ | ||
of any third-party software required to operate the any BNYM Software, (viii) Company's failure to operate theΒ | ||
BNYM Software in accordance with the Documentation, or (ix) Data Faults. (collectively, "Excluded Events").Β | ||
Company will indemnify, and with respect to third party claims will defend, and hold harmless BNYM and ThirdΒ | ||
Party Providers from and against any and all Loss and claims resulting or arising from any Excluded Events.Β |
Β
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5.3Β | BNYM Warranties. BNYM warrants that:Β | |
Β | ||
(i)Β | except for Direct Third Party Products, with respect to which no warranty is made, and subject to the lastΒ | |
Β | sentence of Section 2.3, the Licensed System, if used in accordance with applicable Documentation, willΒ | |
Β | operate in material conformity with applicable Documentation, and in the event of a breach of this clauseΒ | |
Β | (i) BNYM shall take commercially reasonable actions to restore performance of the Licensed System to theΒ | |
Β | requirements of the foregoing warranty;Β | |
Β | ||
(ii)Β | BNYM owns, or has the right to use under valid and enforceable agreements, all Intellectual PropertyΒ | |
Β | Rights reasonably necessary for and related to the provision of the Licensed Rights and to grant the licenseΒ | |
Β | granted under Section 2.1;Β | |
Β | ||
(iii)Β | BNYMβs business is in material compliance with applicable law and regulations the failure to comply withΒ | |
Β | which would have a material adverse effect on BNYMβs performance of its obligations under this ScheduleΒ | |
Β | D; andΒ | Β |
Β | ||
(iv)Β | BNYM has all requisite corporate power and authority to enter into this Agreement and to carry out theΒ | |
Β | transactions contemplated hereby, and the execution, delivery and performance of this Agreement and theΒ | |
Β | consummation of the transactions contemplated hereby have been duly authorized by all requisite corporateΒ | |
Β | action on the part of BNYM.Β | |
Β | ||
5.4Β | Warranty Disclaimer. THE LICENSED SYSTEM AND ALL RELATED SERVICES ARE MADEΒ | |
AVAILABLE TO COMPANY ON AN "AS IS", "AS AVAILABLE" BASIS. UNLESS A SPECIFICΒ | ||
WARRANTY IS EXPRESSLY GIVEN IN THIS SCHEDULE D, NO WARRANTY OF ANY NATURE,Β | ||
EXPRESS OR IMPLIED, IS MADE IN THIS SCHEDULE D, INCLUDING, WITHOUT LIMITATION, ANYΒ | ||
WARRANTY AS TO THE AVAILABILITY, CONDITION, MERCHANTABILITY, NON-INFRINGEMENT,Β | ||
DESIGN, OPERATION OR FITNESS FOR OR SATISFACTION IN REGARDS TO A PARTICULARΒ | ||
PURPOSE.Β | Β | |
Β | ||
5.5Β | Limitation of Warranties. The warranties made by BNYM in this Schedule D, and the obligations ofΒ | |
BNYM under this Schedule D, run only to Company and not to its affiliates, its customers or any other persons.Β | ||
Β | ||
SECTION 6Β | OTHER PROVISIONSΒ | |
Β | ||
6.1Β | Scope of Services. The scope of services to be provided by BNYM under this Agreement shall not beΒ | |
increased as a result of new or revised regulatory or other requirements that may become applicable with respect toΒ | ||
the Company, unless the parties hereto expressly agree in writing to any such increase. BNYM shall not beΒ | ||
obligated to develop or implement Upgrades, but to the extent it elects to do so Section 3.1 shall apply.Β | ||
Β | ||
6.2Β | Additional Provision Regarding Governing Law. This Agreement will not be governed by the UnitedΒ | |
Nations Convention on Contracts for the International Sale of Goods. The Uniform Computer InformationΒ | ||
Transaction Act drafted by the National Conference Of Commissioners On Uniform State Laws, or a versionΒ | ||
thereof, or any law based on or similar to such Act ("UCITA"), if and as adopted by the jurisdiction whose lawsΒ | ||
govern with respect to this Agreement in any form, shall not apply to this Agreement or the activities contemplatedΒ | ||
hereby. To the extent UCITA is applicable notwithstanding the foregoing, the parties agree to opt out of theΒ | ||
applicability of UCITA pursuant to the βopt outβ provisions contained therein.Β | ||
Β | ||
6.3Β | Third Party Providers. Except for those terms and conditions that specifically apply to Third PartyΒ | |
Providers, under no circumstances shall any other person be considered a third party beneficiary of this AgreementΒ | ||
or otherwise entitled to any rights or remedies under this Agreement. Except as may be provided in Third PartyΒ | ||
Agreements, Company shall have no rights or remedies against Third Party Providers, Third Party Providers shallΒ | ||
have no liability of any nature to the Company, and the aggregate cumulative liability of all Third Party Providers toΒ | ||
the Company shall be $1.Β |
Β
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6.4Β | Liability Provisions. Notwithstanding any provision of the Main Agreement or this Schedule D, neitherΒ |
party shall be liable under this Schedule D under any theory of tort, contract, strict liability or other legal orΒ | |
equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, orΒ | |
for any other damages which are not direct damages regardless of whether such damages were or should have beenΒ | |
foreseeable and regardless of whether any entity has been advised of the possibility of such damages, all and each ofΒ | |
which damages is hereby excluded by agreement of the parties.Β | |
Β | |
6.5Β | Assignment. Company may not, and shall not under any circumstances, assign, sublicense or otherwiseΒ |
transfer any Licensed Rights or any part thereof or any obligation under this Schedule D, and any such assignmentΒ | |
or transfer or attempted assignment or transfer shall be void.Β | |
Β | |
6.6Β | Return of Proprietary Items. Upon a termination of this Agreement or a termination of the license to useΒ |
the Licensed System or a license to use a particular Component System, or at the end of a Continuation Period (asΒ | |
defined in Section 6.16), as applicable, Company shall immediately cease attempts to access and use the relevantΒ | |
Component Systems and related Proprietary Items, and Company shall promptly return to BNYM all copies of theΒ | |
relevant Documentation (except Documentation that may have been provided to regulatory authorities pursuant toΒ | |
Section 2.2 and cannot be returned) and any other related Proprietary Items then in Company's possession.Β | |
Company shall remain liable for any payments due to BNYM with respect to the period ending on the date ofΒ | |
termination or any Continuation Period, as applicable, and any charges arising due to the termination.Β | |
Β | |
6.7Β | Conflicts. Applicable terms of the Main Agreement shall apply to this Schedule D but any conflictΒ |
between a term of the Main Agreement and this Schedule D shall be resolved to the fullest extent possible in favorΒ | |
of the term in this Schedule D.Β | |
Β | |
6.8Β | Exclusivity. Company shall solely and exclusively use the Licensed System to perform the computingΒ |
functions and services made available to the Company by the Licensed System.Β | |
Β | |
6.9Β | Term. The term of this Schedule D shall be the same as the term in effect for the Main Agreement,Β |
including with respect to any renewal terms. Additionally, with respect to each Component System to which theΒ | |
Company is given access and use, the term applicable to BNYM's obligation to furnish the Component System andΒ | |
the Company's obligation to pay the fees and charges applicable to the Component System ("Component SystemΒ | |
Obligations") shall be the same as the term applicable to the Core Services, including with respect to any renewalΒ | |
term. For clarification: this Schedule D and the Component System Obligations may be terminated only inΒ | |
connection with a termination of the Main Agreement in accordance with the termination provisions set forth in theΒ | |
Main Agreement, except where this Schedule specifically sets forth an additional termination right.Β | |
Β | |
6.10Β | Confidentiality. Company agrees to maintain the confidentiality of and protect the Proprietary Items and toΒ |
prevent access and use not permitted hereunder with at least the same degree of care that it utilizes with respect to itsΒ | |
own proprietary and nonpublic material, including without limitation agreeing:Β | |
Β | |
(i)Β | not to disclose to or otherwise permit any person access to, in any manner, the Proprietary Items, or anyΒ |
Β | part thereof in any form whatsoever, except that such disclosure or access shall be permitted to anΒ |
Β | employee of Company or Xxxxx Xxxxx in the course of his or her employment and who is bound toΒ |
Β | maintain the confidentiality thereof;Β |
Β | |
(ii)Β | not to use the Proprietary Items for any purpose other than in connection with the Company's exercise ofΒ |
Β | the Licensed Rights, without the consent of BNYM; andΒ |
Β | |
(iii)Β | to promptly report to BNYM any facts, circumstances or events that are reasonably likely to constitute orΒ |
Β | result in a breach of this Section 6.10 or a breach of Section 4 of the Main Agreement with respect to theΒ |
Β | Proprietary Items, and take all reasonable steps requested by BNYM to prevent, control, remediate orΒ |
Β | remedy any such facts, circumstances or events or any future occurrence of such facts, circumstances orΒ |
Β | events.Β |
Β | |
BNYM agrees to secure and maintain the confidentiality of the Company Data in accordance with the provisions ofΒ | |
Sections 4 and 5 of the Main Agreement.Β |
Β
Page 56
6.11Β | Use of Internet. To the extent the ability of the other party to provide or perform services or dutiesΒ |
hereunder is dependent upon the Internet and equipment, software, systems, data and services provided by variousΒ | |
telecommunications carriers, equipment manufacturers, firewall providers, encryption system developers and otherΒ | |
vendors and third parties, each party agrees that the other shall not be liable in any respect for the functions orΒ | |
malfunctions of the Internet.Β | |
Β | |
6.12Β | Provisions Applicable Solely to IAM. In connection with any permitted access and use of IAM, theΒ |
Company agrees, at its expense, to:Β | |
Β | |
(a)Β | Provide, or retain other persons to provide, all computers, telecommunications equipment, encryptionΒ |
technology and other materials, services, equipment and software reasonably necessary to develop and maintain aΒ | |
Company Web Application as contemplated by IAM Documentation, including the functionality necessary toΒ | |
maintain the hypertext links to IAM ("Company IAM Site");Β | |
Β | |
(b)Β | Promptly provide BNYM written notice of changes in Fund policies or procedures requiring changes to theΒ |
IAM settings or parameters or services ("Parameter Changesβ); provided, however, this provision shall beΒ | |
interpreted to require BNYM to modify only adjustable settings and parameters already provided for in IAM inΒ | |
response to a Parameter Change and not to require BNYM to effect any Upgrade;Β | |
Β | |
(c)Β | Work with BNYM to develop informational materials for Permitted Users related to the use of IAM andΒ |
forward a copy of any such informational materials developed solely by Company to BNYM;Β | |
Β | |
(d)Β | Promptly revise and update on the Company IAM Site applicable prospectuses and other pertinentΒ |
materials, such as user agreements, to include the appropriate consents, notices and disclosures, includingΒ | |
disclaimers and information reasonably requested by BNYM;Β | |
Β | |
(e)Β | With respect to the Company IAM Site, maintain all on-screen disclaimers and copyright, trademark andΒ |
service xxxx notifications, if any, provided by BNYM in writing from time to time, and all βpoint and clickβΒ | |
features relating to acknowledgment and acceptance of such disclaimers and notifications; andΒ | |
Β | |
(f)Β | Design and develop the Company IAM Site functionality necessary to facilitate, implement and maintainΒ |
the hypertext links to IAM and the various inquiry and transaction web pages and otherwise make the CompanyΒ | |
IAM Site available to Permitted Users.Β | |
Β | |
6.13Β | Termination and Suspension by BNYM.Β |
Β | |
(a)Β | In the event of a material breach of this Schedule D by Company, BNYM may terminate the LicensedΒ |
Rights in their entirety and all access to and use of the Licensed System by complying with the notice and cureΒ | |
period provisions in the Main Agreement applicable to a material breach of the Agreement.Β | |
Β | |
(b)Β | In the event BNYM reasonably believes in good faith that activity constituting a material breach of a "UseΒ |
Provision" (which is hereby defined to mean each of the following Sections: 2.1, 2.2, 2.6, 2.12, 2.13, 2.15, 2.17,Β | |
2.18, 2.20, 3.4, 4.1, 4.3, 4.4, 4.5, 6.5, 6.6, 6.8, 6.10 and 6.16 (c) and 6.16 (d)) is occurring by Company or aΒ | |
Permitted User, BNYM may, upon prior written notice to Company describing in reasonable detail such allegedΒ | |
activity, without incurring any liability, temporarily suspend access to and use of the Licensed System or aΒ | |
Component System solely for the amount of time necessary for the investigation and resolution of the issues. In theΒ | |
event such advance notice is not reasonably practicable, BNYM shall provide such notice as is reasonablyΒ | |
practicable under the circumstances. BNYM shall exercise this right with diligence to minimize the impact of anyΒ | |
such suspension. The parties agree to promptly cooperate in good faith to address such issues. The Company shallΒ | |
indemnify BNYM for any Loss, and to the extent applicable defend BNYM against Loss, resulting from or arisingΒ | |
out of or in connection with a breach of a Use Provision.Β | |
Β | |
6.14Β | Equitable Relief. Company agrees that BNYM would not have an adequate remedy at law in the event of aΒ |
breach or threatened breach of a Use Provision by the Company and that BNYM would suffer irreparable injury andΒ | |
damage as a result of any such breach. Accordingly, in the event Company breaches or threatens to breach a UseΒ |
Β
Page 57
Provision, in addition to and not in lieu of any legal or other remedies BNYM may pursue hereunder or underΒ | |
applicable law, Company hereby consents to the granting of equitable relief (including the issuance of a temporaryΒ | |
restraining order, preliminary injunction or permanent injunction) against it by a court of competent jurisdiction,Β | |
without the necessity of proving actual damages or posting any bond or other security therefore, prohibiting anyΒ | |
such breach or threatened breach. In any proceeding upon a motion for such equitable relief, BNYMβs ability toΒ | |
answer in damages shall not be interposed as a defense to the granting of such equitable relief.Β | |
Β | |
6.15Β | Survival. Sections 2.1(d), 2.3, 2.5, 2.11, 2.12, 2.14, 2.18(iv), 2.18(v), 3.5, 4.1, 4.2, 4.3, the last clause ofΒ |
Sections 4.4 and 4.5, 4, 5, 6.2, 6.3, 6.4, 6.6, 6.7, 6.10, 6.13(b), 6.14, 6.15, 6.16(i) through (m), 6.16(p) and 6.16(q)Β | |
shall survive any termination of the Agreement and any termination of Licensed Rights.Β | |
Β | |
6.16Β | Provisions Applicable Solely to the 22c-2 System. In connection with any permitted access and use of theΒ |
22c-2 System, the Company agrees as follows:Β | |
Β | |
(a)Β | Definitions. The following terms have the following meanings solely for purposes of this Section 6.16:Β |
Β | |
"Commercially Reasonable Efforts" means taking all such steps and performing in such a manner as a wellΒ | |
managed company in the securities processing industry would undertake where such company was acting in aΒ | |
prudent and reasonable manner under the same or similar circumstances.Β | |
Β | |
"Company 22c-2 Data" means, collectively, the Fund Data, the Shareholder Data and the Supplemental Data.Β | |
Β | |
"Company Database" means the database maintained within the 22c-2 System by and for Company containing theΒ | |
Fund Data, the Shareholder Data and Supplemental Data.Β | |
Β | |
"Financial Intermediary" means a financial intermediary as that term is defined in Rule 22c-2.Β | |
Β | |
"Front End Data" means the transaction data relating to the Funds and the accounts of Shareholders of the FundsΒ | |
(i) specified by applicable Documentation for use within the 22c-2 System to yield reports intended to assist theΒ | |
Company in determining the Financial Intermediaries from which additional transactional details could be requestedΒ | |
for purposes of compliance with SEC Rule 22c-2, and (ii) which has been selected by the Company and transmittedΒ | |
to the Company Database.Β | |
Β | |
"Fund Data" means, collectively, the Front End Data and the Fund Settings.Β | |
Β | |
"Fund Settings" means the Fund preferences, parameters, rules and settings inputted into the Company DatabaseΒ | |
and 22c-2 System by Company to administer a Fund's Rule 22c-2 policies.Β | |
Β | |
"Rule 22c-2" means Rule 22c-2 of the SEC promulgated under the 1940 Act.Β | |
Β | |
"Shareholder" means a shareholder, as that term is defined in Rule 22c-2, of any of the Funds.Β | |
Β | |
"Shareholder Data" means the transaction data with respect to Shareholders in a Fund requested by Company thatΒ | |
a Financial Intermediary, for access and use by Company in the 22c-2 System, (i) delivers to BNYM by aΒ | |
Designated Method, or (ii) delivers to Company and is inputted into the Company Database by Company.Β | |
Β | |
"Software," whether capitalized or not, means computer software in human readable form that is not suitable forΒ | |
machine execution without intervening interpretation or compilation.Β | |
Β | |
"SRO" means any self-regulatory organization, including national securities exchanges and national securitiesΒ | |
associations.Β | |
Β | |
"Supplemental Data" means any data or information, other than the Shareholder Data and Fund Data, inputted intoΒ | |
the Company Database by Company, or provided to BNYM and inputted into the Company Database by BNYM asΒ | |
an additional service, that Company has reasonably determined is necessary in the operation of the 22c-2 System forΒ | |
purposes of compliance with Rule 22c-2.Β |
Β
Page 58
(b)Β | Availability. BNYM shall make the 22c-2 System available to Company from 8:00 a.m. to 6:00 p.m.,Β | |
Eastern Time, during days the New York Stock Exchange is open for trading, except for periods therein in whichΒ | ||
BNYM suspends access for maintenance, backup, updates, upgrades, modifications required due to changes inΒ | ||
Applicable Law, or other commercially reasonable purposes as reasonably determined by BNYM. BNYM will useΒ | ||
Commercially Reasonable Efforts to limit any periods of nonavailability due to the foregoing activities.Β | ||
Β | ||
(c)Β | Third Party Provisions. Company's use of the 22c-2 System shall be subject to the terms and conditionsΒ | |
contained in BNYM's agreements with Third Party Providers that BNYM is required by such agreements to apply toΒ | ||
users of the software or services of the particular Third Party Provider to the extent notified of such terms andΒ | ||
conditions by BNYM.Β | ||
Β | ||
(d)Β | BNYM Modifications. Company hereby accepts all such modifications, revisions and updates, includingΒ | |
changes in programming languages, rules of operation and screen or report format, as and when they areΒ | ||
implemented by BNYM, and agrees to take no action intended to have or having the effect of canceling, reversing,Β | ||
nullifying or modifying in any fashion the operation or results of such modifications, revisions and updates. BNYMΒ | ||
will make Commercially Reasonable Efforts to give Company advance written notice before any suchΒ | ||
modifications, revisions or updates to the 22c-2 System go into effect.Β | ||
Β | ||
(e)Β | Shareholder Data.Β | |
Β | ||
Β | (1)Β | Company acknowledges that Financial Intermediaries, not BNYM, provide the Shareholder Data,Β |
that Company's access to the Shareholder Data through use of the 22c-2 System is dependent upon delivery of theΒ | ||
Shareholder Data by the Financial Intermediaries, and that BNYM is not responsible or liable in any manner for anyΒ | ||
act or omission by a Financial Intermediary with respect to the delivery of Shareholder Data. Company alsoΒ | ||
acknowledges that Financial Intermediaries may deliver Shareholder Data which modifies Shareholder DataΒ | ||
previously delivered or may refuse to provide Shareholder Data and that BNYM is not responsible or liable in anyΒ | ||
manner for any such modification of Shareholder Data or any such refusal to deliver Shareholder Data.Β | ||
Β | ||
Β | (2)Β | Company has sole responsibility for authorizing and directing a Financial Intermediary to deliverΒ |
Shareholder Data that Company may require for purposes of Rule 22c-2. BNYM shall be obligated to receive andΒ | ||
input into the Company Database only that Shareholder Data which has been delivered by a Financial IntermediaryΒ | ||
through the facilities maintained for such purpose by the NSCC or through the internal communications linksΒ | ||
provided in the 22c-2 System ("Designated Methods"). Company shall be solely responsible for inputting into theΒ | ||
Company Database and the 22c-2 System any Shareholder Data delivered by a method other than a DesignatedΒ | ||
Method.Β | Β | |
Β | ||
(f)Β | Company 22c-2 Data. As between Company and BNYM, Company alone shall be responsible forΒ | |
obtaining all Fund Data, Shareholder Data and Supplemental Data that Company determines is required inΒ | ||
connection with its use of the 22c-2 System. Company is exclusively responsible for (i) the accuracy and adequacyΒ | ||
of all Company 22c-2 Data; (ii) the review of and the accuracy and adequacy of all output of the 22c-2 SystemΒ | ||
before reliance or use (provided the 22c-2 System is operating in accordance with the Documentation); and (iii) theΒ | ||
establishment and maintenance of appropriate control procedures and back up procedures to reduce any loss ofΒ | ||
information, interruption or delay in processing Company 22c-2 Data. Company shall comply with all ApplicableΒ | ||
Laws and obtain all necessary consents from any person, including Financial Intermediaries, regarding theΒ | ||
collection, use and distribution to BNYM of Company 22c-2 Data as contemplated herein and of any otherΒ | ||
information or data regarding Company and the Funds that Company provides or causes to be provided for theΒ | ||
purposes set forth herein.Β | ||
Β | ||
(g)Β | Communications Configuration. Company shall be responsible, at its expense, for procuring andΒ | |
maintaining the communications equipment, lines and related hardware and software reasonably specified byΒ | ||
BNYM to comprise the communications configuration required for Company to use the 22c-2 System and anyΒ | ||
Updates and General Upgrades to the communications configuration.Β | ||
Β | ||
(h)Β | Front End Data. As between Company and BNYM, Company shall be solely responsible for selectingΒ | |
Front End Data, identifying it to BNYM and directing BNYM to transmit the identified Front End Data from theΒ |
Β
Page 59
BNYM transfer agent system to the Company 22c-2 Database in the 22c-2 System. Company hereby authorizesΒ | ||
BNYM to transmit Front End Data to the 22c-2 System without further action on anyone's part upon receiving aΒ | ||
communication from Company identifying Front End Data for transmission to the 22c-2 System.Β | ||
Β | ||
(i)Β | Restricted Use of Company 22c-2 Data. The Company 22c-2 Data constitutes "Confidential Data" for allΒ | |
purposes of Section 4 and other applicable provisions of the Main Agreement. As between the Company andΒ | ||
BNYM, title to all Company 22c-2 Data and all related intellectual property and other ownership rights shall remainΒ | ||
exclusively with Company. Company authorizes BNYM to maintain and use Company 22c-2 Data solely in theΒ | ||
manner contemplated by applicable Documentation and this Agreement and to aggregate Company 22c-2 Data inΒ | ||
the Company Database with data of other users of the 22c-2 System to analyze and enhance the effectiveness of theΒ | ||
22c-2 System and to create broad-based statistical analyses and reports for users and potential users of the 22c-2Β | ||
System and industry forums.Β | ||
Β | ||
(j)Β | Application of Results. Except to the extent that the results are inaccurate due to BNYM's grossΒ | |
negligence, willful misconduct or bad faith, neither BNYM nor any Third Party Provider shall have liability for anyΒ | ||
loss or damage resulting from any application of the results, or from any unintended or unforeseen results, obtainedΒ | ||
from the use of the 22c-2 System or any related service provided by BNYM.Β | ||
Β | ||
(k)Β | Exclusion for Unauthorized Actions. Neither BNYM nor any Third Party Provider shall have any liabilityΒ | |
with respect to any performance problem, warranty, claim of infringement or other matter to the extent attributableΒ | ||
to any unauthorized or improper use, alteration, addition or modification of the 22c-2 System by Company, anyΒ | ||
combination of the 22c-2 System with software not specified by applicable Documentation and any other use of theΒ | ||
22c-2 System in a manner inconsistent with this Agreement or applicable Documentation.Β | ||
Β | ||
(l)Β | Disclaimer. BNYM DOES NOT WARRANT THAT USE OF THE 22C-2 SYSTEM BY COMPANYΒ | |
GUARANTEES COMPLIANCE WITH RULE 22C-2 OR ANY OTHER FEDERAL, STATE, LOCAL OR SROΒ | ||
LAW OR REGULATION. BNYM DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ASPECT OFΒ | ||
LEGAL AND REGULATORY COMPLIANCE BY OR ON BEHALF OF COMPANY, NOR SHALL COMPANYΒ | ||
REPRESENT OTHERWISE TO ANY PERSON. COMPANY'S USE OF THE 22C-2 SYSTEM AND ANYΒ | ||
OTHER SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT BE DEEMED LEGAL ADVICE.Β | ||
Β | ||
(m)Β | Hardware Disclaimer. Under no circumstance shall BNYM or a Third Party Provider be liable to CompanyΒ | |
or any other Person for any loss of profits, loss of use, or for any damage suffered or costs and expenses incurred byΒ | ||
Company or any Person, of any nature or from any cause whatsoever, whether direct, special, incidental orΒ | ||
consequential, arising out of or related to computer hardware.Β | ||
Β | ||
(n)Β | Termination by BNYM. BNYM may immediately terminate Company's license to use and Company'sΒ | |
access to and use of the 22c-2 System upon the occurrence of any of the following events:Β | ||
Β | ||
Β | (a)Β | Company engages in conduct which infringes or exceeds the scope of the license granted toΒ |
Company by Section 2.1 of this Schedule D in a material manner and does not cure the breach within twelve (12)Β | ||
business days after receiving written notice from BNYM; orΒ | ||
Β | ||
Β | (b)Β | A Third Party Provider terminates any relevant agreement the Third Party Provider has withΒ |
BNYM that is necessary in order for BNYM to be able to license (or continue to license) the 22c-2 System toΒ | ||
Company. BNYM agrees to provide Company with as much notice of such termination as BNYM receives from theΒ | ||
Third Party Provider.Β | ||
Β | ||
(o)Β | Continuation Period. In the event the Agreement is terminated and in connection with such a terminationΒ | |
the parties agree that Company will continue to have access to and use of the 22c-2 System, then the terms of thisΒ | ||
Agreement shall apply during any such continuation period. The term of any such continuation period shall be dayΒ | ||
to day and the continuation period may be terminated immediately by either party at any time by written noticeΒ | ||
notwithstanding the contents of any notice or other communication the parties may exchange, unless both partiesΒ | ||
agree in writing to such contents. A continuation period as described in this subsection (o) is referred to herein as aΒ | ||
"Continuation Period".Β |
Β
Page 60
(p)Β | Effect of Termination. Following a termination of the Agreement or at the end of a Continuation Period, asΒ |
applicable, BNYM will (i) dispose of all Company 22c-2 Data in accordance with its applicable backup and dataΒ | |
destruction policies, and (ii) use good faith efforts to make electronic copies of Company 22c-2 Data in existingΒ | |
report formats of the 22c-2 System to the extent reasonably requested by Company no less than thirty (30) days inΒ | |
advance of the termination of the Agreement.Β | |
Β | |
(q)Β | This Agreement shall benefit and be enforceable by Third Party Providers of the 22c-2 System.Β |
Β | |
[Remainder of Page Intentionally Blank] |
Β
Page 61
EXHIBIT 1 TO SCHEDULE D | ||
Β | ||
AdvisorCentralΒ | A portal for trusts, financial advisors, broker/dealers and other financial intermediaries to view mutual fundΒ | |
Β | Β | and client account data on the transfer agent mainframe via the Internet if permitted access by theΒ |
Β | Β | Company and for Company back offices to view the same data.Β |
Β | ||
ACEΒ | (Automated Control Environment) - Windows database and reporting capability which automates accountingΒ | |
Β | functions for mutual fund settlement, gain/loss tracking, dividend/capital gains settlement and tax withholdingΒ | |
Β | tracking.Β | |
Β | ||
AOSΒ | (Advanced Output Solutions) β performs print mail and tax form production and fulfillment services.Β | |
Β | ||
CMS*Β | (Customer Management Suite) - the combination of functionalities, systems and subsystems which together provideΒ | |
Β | the following capabilities: workflow management, electronic document processing, integrated Web-based front-endΒ | |
Β | processing, customer relationship management and automated servicing of brokers and investors.Β | |
Β | ||
COLDΒ | (Computer Output to Laser Disk) - document management system that provides for the laser disc storage in aΒ | |
Β | PC/server environment of certain data and documents generated on a mainframe and quick retrieval.Β | |
Β | ||
DAZLΒ | (Data Access Zip Link) - application which extracts broker/dealer data at the representative level, branch level andΒ | |
Β | broker/dealer level and third party administrator data from the transfer agent mainframe and transmits it to CompanyΒ | |
Β | designated end users for viewing.Β | |
Β | ||
DRASΒ | (Data Repository and Analytics Suite) - a relational data base for management reporting which consists of theΒ | |
Β | management companyβs entire customer information base as copied nightly from the transfer agent mainframe andΒ | |
Β | includes an integrated reporting tool.Β | |
Β | ||
FSRΒ | (Full Service Retail) - principal transfer agent mainframe system which performs comprehensive processing andΒ | |
Β | shareholder recordkeeping functions, including: transaction processing (purchases, redemptions, exchanges,Β | |
Β | transfers, adjustments, and cancellations), distribution processing (dividends and capital gains), commissionΒ | |
Β | processing and shareholder event processing (automatic investment plans, systematic withdrawal plans, systematicΒ | |
Β | exchanges); creating and transmitting standard and custom data feeds to support printed output (statements,Β | |
Β | confirmations, checks), sales and tax reporting. FSR interfaces and exchanges data with various surround systemsΒ | |
Β | and subsystems and includes a functionality providing for direct online access.Β | |
Β | ||
FPTΒ | (Fund Pricing Transmission) - application automating price and rate uploads and downloads used to perform dailyΒ | |
Β | fund and rate pricing from fund accounting.Β | |
Β | ||
IAMΒ | (Internet Account Management) - application permitting account owners via the Internet to view account informationΒ | |
Β | and effect certain transactions and account maintenance changes.Β | |
Β | ||
NSCC*Β | (National Securities Clearing Corporation) - application allowing web-based utility at user's desktop to supportΒ | |
Β | processing linked to NSCC activity, including networking, Fund/SERV, DCC&S, Commission/SERV, mutual fundΒ | |
Β | profile, and transfer of retirement assets, and includes NEWS (NSCC Exception Workflow Processing) whichΒ | |
Β | provides for the inputting of reject and exception information to the NSCC system.Β | |
Β | ||
RECONΒ | (Reconciliation) - application automating bank DDA (Demand Deposit Account) reconciliation.Β | |
Β | ||
TRSΒ | (Tax Reporting Service) - functionality performing all applicable federal and state tax reporting (tax form processingΒ | |
Β | and corrections), tax-related information reporting, and compliance mailings (including X-0, X-0, XXX, B-Notice,Β | |
Β | and C-Notice).Β | |
Β | ||
22c-2 SystemΒ | The data warehousing, analytic and administrative applications together with the related software, interfaces,Β | |
Β | Β | functionalities, databases and other components provided by BNYM to assist fund sponsors and theirΒ |
Β | Β | principal underwriters in satisfying requirements imposed by Rule 22c-2.Β |
-------------------------------------------------------------------------------------Β | ||
* For clarification: The Company or a Permitted User may be given access to and use of one or more separable componentsΒ | ||
of this system (for example, with respect to the CMS system, "Correspondence", "Image", "Customer RelationshipΒ | ||
Manager" and "Operational Desktop") rather than the entire system and a license granted by this Schedule D to useΒ | ||
separable components is limited to the functionalities of the separable components even if certain of functionalities of theΒ | ||
separable components may include integration points with functionalities of the non-licensed components.Β |
Β
Page 62
[End to Exhibit 1 to Schedule D] [End to Schedule D]Β |
Β
Page 63
SCHEDULE E | |||||
Disaster Recovery Services | |||||
1.Β | EQUIPMENT. Upon notification by the Fund to BNYM of a Disaster, BNYM shall make available to theΒ | ||||
Β | Fund the following equipment and services:Β | Β | |||
Β | Β | Β | QtyΒ | TypeΒ | DescriptionΒ |
Β | Workarea(s):Β | 30Β | StationsΒ | Pre-wired Workspace with PC Stations equipped withΒ | |
Β | Β | Β | Β | Β | standard BNY Mellon Transfer Agent DesktopΒ |
Β | Β | Β | Β | Β | Applications (including local printer access)Β |
Β | Voice Recovery:Β | 30Β | PhonesetsΒ | PBX connected into a defined split & RecordedΒ | |
Β | Β | Note:Β | Fund responsible for any call re-routing to Transfer Agent through its carrier(s).Β | ||
2.Β | TOTAL ANNUAL DISASTER RECOVERY TEST TIMEΒ | ||||
Β | Β | Emergency Response Backup CapabilityΒ | 48 Hours/YearΒ | ||
3.Β | SPECIAL TERMS:Β | Β | Β | ||
Β | A.Β | The equipment described in this Schedule may be substituted by BNYM with comparable orΒ | |||
Β | Β | equivalent units.Β | Β | Β | |
Β | B.Β | BNYM provided Emergency Response PC/Stations will be equipped with Windows XP or higherΒ | |||
Β | Β | version level software.Β | Β | Β | |
Β | C.Β | Maximum Fund personnel for the Emergency Response Backup Capability is limited to theΒ | |||
Β | Β | quantity of Emergency Response Workarea Stations plus a reasonable amount of technical supportΒ | |||
Β | Β | personnel as agreed to by Transfer Agent.Β | Β | ||
Β | D.Β | Fundβs access to and use of the Backup Capability shall be limited to the quantities andΒ | |||
Β | Β | configurations set forth in this Schedule.Β | Β |
Β
Page 64
Β | SCHEDULE FΒ |
Β | MANAGEMENT COMPANY SUPPORT, TRANSACTION PROCESSING, AND CORRESPONDENCEΒ |
Β | PERFORMANCE STANDARDS AND INCENTIVESΒ |
Β | |
I.Β | Management Company SupportΒ |
Β | Monthly Payout Calculation (Quality)Β |
Β
This is an individual incentive plan based on attainment of individual monthlyΒ |
quality control, quality assurance, timeliness, and/or callout scores as computedΒ |
Supervisors and Managers.Β |
Β |
Scores are computed monthly from the first business day of the month through theΒ |
last business day of the month.Β |
Β |
The INTERNAL ACCURACY score is the monthly average of the daily qualityΒ |
control score. 100% of adjustments, corrections and control forms submitted areΒ |
quality controlled by management prior to being processed.Β |
Β |
The EXTERNAL ACCURACY score is the monthly average of weekly qualityΒ |
assurance scores performed by management. Random samplings of resolved itemsΒ |
are reviewed weekly for quality assurance. An external error is defined as an errorΒ |
that is visible to the shareholder, broker, or management company client.Β |
Β |
The RESOLUTION TIMELINESS score represents the percentage of resolutionΒ |
items that are resolved within 5 business days. Items delayed by circumstancesΒ |
beyond associate/PNC GIS control are not counted toward this score.Β |
Β |
THE CALLOUT TIMELINESS score represents the percentage of calloutsΒ |
completed within department timeframes for the month based on the weekly calloutΒ |
audit performed by Supervisors and Managers.Β |
Β |
If an employee is newly hired or promoted from outside the MCS Department intoΒ |
one of the above positions, eligibility will begin the 1st full month after completingΒ |
90 days in the position.Β |
Β
Page 65
Β | This plan is effective beginning October 1, 2011.Β |
II.Β | Β |
Transaction Processing and Correspondence | |
Β | Monthly Payout Calculation (Productivity & Quality)Β |
Β
III.Β | MAXIMUM INCENTIVE PLAN REWARD PAYOUTSΒ |
Β | |
TOTAL REWARDS AVAILABLE for Transaction Processing, Correspondence, and MCS collectively $60,000 perΒ | |
annumΒ | |
Additional Points:Β | |
Β | |
Β | 1. BNY Mellon has committed to paying for the NQRβrelated costs for the transaction processing andΒ |
Β | correspondence review as a part of their commitment to care. This cost is approximately $93,000 / year.Β |
Β
Page 66
SCHEDULE G | ||
ADDITIONAL XXXXX XXXXX SERVICE LEVEL STANDARDS | ||
Β | ||
Transaction ProcessingΒ | ||
β’Β | New accounts (including TOA New Accounts) - TΒ | |
β’Β | Purchases - TΒ | |
β’Β | Exchanges - TΒ | |
β’Β | Transfers - T + 2Β | |
β’Β | Redemptions - TΒ | |
β’Β | Maintenances - T + 4Β | |
Β | ||
Correspondence/Call OutsΒ | ||
β’ Priority Calls (Financial) - T + 1Β | ||
β’ Priority Letters (Financial) - T+4Β | ||
β’ Non-Priority Calls - T + 3Β | ||
β’ Non-Priority Letters - T + 4Β | ||
β’ Transfer of Assets Letters - T+4Β | ||
Β | ||
AdjustmentsΒ | Β | |
β’ Processing Initiated for All items - T + 0Β | ||
β’ All items Quality Control - T + 1Β | ||
β’ Cancel/Rebill - TΒ | ||
Β | ||
Management Company SupportΒ | ||
β’Β | 99% > of Priority 6 Financial items received in good order prior to 3:00pm EST will be submitted forΒ | |
Β | initial processing or research on TΒ | |
β’Β | 99%> of all items received in good order by MCS prior to 3:00pm EST will be assigned andΒ | |
Β | acknowledged on the AHD systemΒ | |
β’Β | 80%> of all items received in good order by MCS prior to 3:00pm EST will be resolved in T + 3Β | |
β’Β | 90%> of all items received in good order by MCS prior to 3:00pm EST will be resolved T + 5Β | |
β’Β | 98%> completed item accuracy, as determined by dispute feedback provided by Xxxxx Xxxxx TeamΒ | |
Β | Leaders and mutually agreed by MCS ManagementΒ | |
Β | ||
ResearchΒ | Β | |
β’ Priority Items ( Financial ) β R + 2Β | ||
β’ Non-Financial Items β R + 3Β | ||
β’ Other βΒ | Β | |
Β | ΖΒ | Statements, Tax Forms - ( Current to 1997) β R + 1Β |
Β | ΖΒ | Transcripts/Fiche β ( 1997-1985) β R + 3Β |
Β | ΖΒ | Items Prior to 1985 ( pulls from Iron Mountain ) β R + 5Β |
Β | ΖΒ | Check Requests ( IPS ) β R + 1Β |
Β | ΖΒ | Check Requests ( non-IPS) β R + 3Β |
Β
Page 67
SCHEDULE H |
Β |
βAs-ofβ Procedures |
Β |
Set forth below are the procedures BNYM will follow with respect to the treatment of financial gains and lossesΒ |
resulting from βas-ofβ shareholder transactions in the Xxxxx Xxxxx Funds.Β |
Β |
Β |
Definitions |
Β |
Β |
Β |
β’ As-of Shareholder TransactionΒ |
An βas-ofβ transaction, also known as a backdated trade, is defined as a purchase, redemption or exchangeΒ |
transaction processed on a retroactive basis. The effective date of such transaction will be a date prior to theΒ |
processing date. The difference in the share price between the βas-ofβ trade date and the processing date couldΒ |
result in a gain or loss to the Portfolio (or shareholder) which may increase or dilute the assets of the Fund (shareΒ |
class) or any dividends paid by the Portfolio during the Accumulation Period as defined below.Β |
Β |
Β |
β’ MaterialityΒ |
Materiality shall be defined as the point at which the NAV of the Fund is impacted as described below.Β |
Β |
Β |
Β |
β’ Late Dividend Gain/LossΒ |
An increase or decrease in the Funds dividend or distribution amounts to be paid to shareholders that resultsΒ |
from any βas-ofβ trading activity after the Funds distribution ex-dividend date (ex-date).Β |
Β |
General Practice |
Β |
Β |
BNYM has the capability to track, at the Portfolio or Fund/class level, both on a daily and cumulative basis, theΒ |
impact of all shareholder βas-ofβ transactions processed through BNYMβs transfer agent system (the βBNYMΒ |
Systemβ). This tracking is reflected on the daily SuperSheets prepared by BNYM. For Xxxxx Xxxxx, daily andΒ |
cumulative gain/loss balances are reported βnetβ at the Portfolio level. To facilitate the tracking and reportingΒ |
process, BNYM assigns a responsibility code to track gain/loss by the following parties:Β |
Β |
Β |
1. Management CompanyΒ |
β’ Management CompanyΒ |
β’ DealerΒ |
Β |
2. FundΒ |
β’ EstimatesΒ |
β’ ShareholderΒ |
β’ Transmission IssueΒ |
Β |
3. Transfer AgentΒ |
Β |
Gain/Loss Reporting and TrackingΒ |
Β |
BNYM tracks the responsibility by Management Company, Fund and Transfer Agent for all gains and lossesΒ |
generated by βas-ofβ transactions. BNYM may also prepare detailed explanations of βas-ofβ activity, primarily forΒ |
Β
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internal process improvement purposes. Additionally, a daily/weekly/monthly gain/loss report can be madeΒ | |
available to designated individuals at the Fund(s) upon request.Β | |
Β | |
Standard of Materiality | |
Β | |
Materiality shall be defined as the point at which the NAV of the Fund is impacted. Materiality is further classifiedΒ | |
into two categories.Β | |
Β | |
β’Β | Daily Event / Material Price Impact:Β |
Β | A pricing error will be considered material if the error is greater than or equal to $.005 per outstanding share onΒ |
Β | a given day.Β |
Β | |
β’Β | Daily Event / Non-Material Price Impact:Β |
Β | A pricing error will be considered non-material if the error is less than $.005 per outstanding share on a givenΒ |
Β | day.Β |
Β | |
Β | |
Procedure | |
Β | |
Daily Event / Material Price ImpactΒ | |
Β | |
In the event that an βas-ofβ gain/loss amount to the Fund is equal to or exceeds $.005 per outstanding share on anyΒ | |
business day, the Fundβs fund accounting service provider (βFund Accountingβ) will be responsible for notifyingΒ | |
BNYM and the Fund(s). In addition, Fund Accounting will immediately book the appropriate payable/receivable entryΒ | |
in order to βkeep the Fund whole.β At that time, BNYM will provide a detailed explanation of the transaction, orΒ | |
transactions, which caused the βas-ofβ amount to equal or exceed the $.005 per outstanding share threshold. BNYMΒ | |
will work closely with the Fund(s) to identify and resolve the full gain/loss amount.Β | |
Β | |
Upon confirmation of the reason(s) for any such material price impact resulting from an βas-ofβ loss on a given day, theΒ | |
responsible party or parties is required to reimburse the full amount due to the Fund. Such reimbursement will occurΒ | |
within a 30 day period and outside of the normal monthly settle-up process.Β | |
Β | |
Β | |
Β | |
Daily Event / Non-Material Price ImpactΒ | |
Β | |
BNYM will be responsible for reimbursing the Funds for Transfer Agency designated netted losses of $200 orΒ | |
greater and will settle up on a monthly basis. Netting is only applicable if a gain and loss is generated on related βasΒ | |
ofβ transactions within the same Portfolio. Related transactions would be defined as transactions processed withinΒ | |
the scope of a single adjustment occurrence within the same Portfolio. Otherwise, all gains will remain with theΒ | |
Funds. On an annual basis, the reimbursement by BNYM for net losses will not exceed $100,000. For resolution ofΒ | |
all loss amounts above the $100,000 annual threshold, BNYM reserves the right to negotiate a mutually agreed uponΒ | |
settlement with Xxxxx Xxxxx.Β | |
Β | |
The responsibility for the tracking and recovery of all other amounts owed to the Funds resulting from βas ofβΒ | |
transaction activity resides with Xxxxx Xxxxx.Β | |
Β | |
Β | |
BNYM will utilize the procedures outlined below for dividend accrual gain/loss resulting from any βas ofβ tradingΒ | |
activity occurring within a given calendar month and βlate dividendsβ resulting from βas-ofβ transactions crossing aΒ | |
Funds ex-date.Β | |
Β | |
Late Dividend Gain/LossΒ |
Β
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Late dividend gain/loss results from βas-ofβ trade activity that generates a dividend/capital gain after the FundsΒ |
payable date. Late dividend gain/loss will be reported to Xxxxx Xxxxx and recovered in accordance with theirΒ |
existing gain/loss reimbursement procedures.Β |
Β |
Interest CompensationΒ |
In the event of a check disbursement or wire payment error in which the shareholder has lost interest due to aΒ |
misrouting of the proceeds, BNYM will not pay interest compensation to the shareholder until reimbursement ofΒ |
such interest earnings are received from the bank that erroneously benefited from the misrouted payment. In casesΒ |
where BNYM is at fault, payment of interest compensation to the shareholder will not be delayed.Β |
Β
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