Exhibit No. EX. 99.h.1.E
THE XXXXXXX FUNDS
ADDENDUM TO THE
FUND ADMINISTRATION SERVICING AGREEMENT
THIS ADDENDUM dated as of the 31 day of October, 2006, to the Fund
Administration Servicing Agreement, dated as of February 2, 1998, as amended
(the "Agreement"), is entered by and between THE XXXXXXX FUNDS, a Delaware
statutory trust (the "Trust") and U.S. BANCORP FUND SERVICES, LLC, a Wisconsin
limited liability company ("USBFS").
RECITALS
WHEREAS, the parties have entered into a Fund Administration Servicing
Agreement; and
WHEREAS, the parties desire to modify said Agreement; and
NOW, THEREFORE, the parties agree that the following provisions shall be
added following Article XII of the Agreement:
XIII. Additional Services to be provided by USBFS
The Trust desires USBFS to provide, and USBFS agrees to provide, the
services that are listed below (each, a "System"). Each System is described
and may be subject to additional terms and conditions specified in its
respective exhibit noted below, as such may be amended from time to time:
Eagle Portal (Appendix I)
The Trust hereby acknowledges that exhibits are an integral part of this
Agreement and, to the extent services included in Appendix I are selected
by the Trust, such services shall also be subject to the terms of this
Agreement. To the extent the terms and conditions of this Agreement
conflict with the terms and conditions included in Appendix I, as
applicable, the exhibits shall control. The provisions of Appendix I, as
applicable, shall continue in effect for as long as this Agreement remains
in effect, unless sooner terminated pursuant to Section 13 hereof.
XIV. System Maintenance
The Trust understands that USBFS will perform periodic maintenance to the
System(s), which may cause temporary service interruptions. To the extent
possible, USBFS shall notify the Trust of all planned outages and will
perform any necessary maintenance during non-business hours.
XV. Additional Representations and Warranties
The parties hereby warrant that neither party shall knowingly insert into
any interface, other software, or other program provided by such party to
the other hereunder, any "back door," "time bomb," "Trojan Horse," "worm,"
"drop dead device," "virus" or other computer software code or routines or
hardware components designed to disable, damage or impair the operation of
any System, program or operation hereunder. For failure to comply with this
warranty, the non-complying party shall immediately replace all copies of
the affected work product, System or software. All costs incurred with
replacement including, but not limited to, cost of media, shipping,
deliveries and installation, shall be borne by such party.
XVI. Proprietary Rights
A. The Trust acknowledges and agrees that by virtue of accessing the
System(s), it shall not obtain any rights in or to any of the software,
templates, screen and file formats, interface protocols, formats and
development tools and instructions, hardware, processes, trade secrets,
instruction manuals, enrollment authorization, authentication and other
business processes, proprietary information or distribution and
communication networks used to allow access to the System(s) owned by or
licensed to USBFS. Any interface and other software or programs provided to
the Trust in order to provide connectivity to the System(s) shall be used
by the Trust only for the period during which this Agreement is in effect
and only in accordance with the terms of this Agreement, and shall not be
used by the Trust to provide connectivity to or through any other system or
person without USBFS's prior written approval. The Trust shall not copy,
decompile or reverse engineer any software or programs provided to the
Trust hereunder. The Trust also agrees not to take any action which would
mask, delete or otherwise alter any on-screen disclaimers and copyright,
trademark and service xxxx notifications, or any "point and click" features
relating to acknowledgment and acceptance of such disclaimers and
notifications.
B. The Trust agrees that USBFS would not have an adequate remedy at law in
the event of the Trust's breach or threatened breach of its obligations
under this Section XVI of this Agreement and that USBFS would suffer
irreparable injury and damage as a result of any such breach. Accordingly,
in the event the Trust breaches or threatens to breach the obligations set
forth in this Section of this Agreement, in addition to and not in lieu of
any legal or other remedies USBFS may pursue hereunder or under applicable
law, the Trust hereby consents to the granting of equitable relief
(including the issuance of a temporary restraining order, preliminary
injunction or permanent injunction) against it by a court of competent
jurisdiction, without the necessity of proving actual damages or posting
any bond or other security therefor, prohibiting any such breach or
threatened breach. In any proceeding upon a motion for such equitable
relief, the Trust's ability to answer in damages shall not be interposed as
a defense to the granting of such equitable relief. The provisions of this
Section relating to equitable relief shall survive termination of this
Agreement.
C. Each party acknowledges and agrees that it obtains no rights in or to
any of the software, hardware, processes, trade secrets, and proprietary
information or distribution and communication networks of the other
hereunder. Except in the normal course of business and in conformity with
Federal copyright law or with the other party's consent, neither party nor
any of its affiliates shall disclose, use, copy, decompile or reverse
engineer any software or other programs provided to such party by the other
in connection herewith.
XVII. Additions to Standard of Care; Indemnification; Limitation of Liability
A. USBFS shall not be liable for any loss or damages resulting from
fraudulent, unauthorized, or otherwise improper use of any identification
or security codes or systems access mechanisms assigned by USBFS in
connection with access to the System(s), except a loss or damages arising
out of or relating to the USBFS's refusal or failure to comply with the
terms of this Agreement or from its bad faith, gross negligence, or willful
misconduct in the performance of its duties under this Agreement.
B. The Trust understands that certain services made available through the
System(s) are provided through the use of the equipment, software, and
other related services pursuant to certain contracts between various
vendors and USBFS. The Trust agrees to release and hold harmless USBFS
against any and all claims, demands, losses, expenses and liabilities of
any and every nature (including reasonable attorneys' fees) (collectively,
"Liabilities") which may arise from or by reason of the Trust's use of such
equipment, software or services provided by such vendors to USBFS, except
Liabilities arising out of or relating to the USBFS's refusal or failure to
comply with the terms of this Agreement or from its bad faith, gross
negligence, or willful misconduct in the performance of its duties under
this Agreement.
C. USBFS CANNOT AND DOES NOT GUARANTEE AVAILABILITY OF THE SYSTEM(S).
Accordingly, USBFS's sole liability to the Trust or any third party
(including end users) for any claims, notwithstanding the form of such
claims (e.g., contract, negligence, or otherwise), arising out of the delay
of or interruption in the System(s) to be provided by USBFS hereunder shall
be to use its best reasonable efforts to commence or resume the System(s)
as promptly as is reasonably possible.
D. Because the ability of USBFS to deliver the System(s) is dependent upon
the Internet and equipment, software, systems, data and services provided
by various telecommunications carriers, equipment manufacturers, firewall
providers and encryption system developers and other vendors and third
parties, USBFS shall not be liable for delays or failures to perform its
obligations hereunder to the extent that such delays or failures are
attributable to circumstances beyond its reasonable control which interfere
with the delivery of the System(s) by means of the Internet or any of the
equipment, software and services which support the Internet provided by
such third parties. USBFS shall also not be liable for the actions or
omissions of any third party wrongdoers (i.e., hackers not employed by
USBFS or its affiliates) or of any third parties involved in the System(s)
and shall not be liable for the selection of any such third party, unless
USBFS selected the third party in bad faith or in a grossly negligent
manner.
XVIII. Warranties
The Trust acknowledges that it is responsible for determining the
suitability and accuracy of the information provided through its access to
the System(s). USBFS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE SUITABILITY AND ACCURACY OF THE SYSTEM(S).
However, USBFS will assist the Trust in verifying the accuracy of any of
the information available to the Trust through the System(s).
XIX. Addition to File Security and Retention; Confidentiality
USBFS and its agents will provide reasonable security to ensure that
unauthorized third parties do not have access to the Trust's databases,
files, and other information provided by the Trust to USBFS for use with
the System(s), the names of end users or end user transaction or account
data (collectively, "Trust Files"). USBFS's security provisions with
respect to the System(s), the Trust's web site(s) and the Trust Files will
be no less protected than USBFS's security provisions with respect to its
own proprietary information. USBFS agrees that any and all Trust Files
maintained by USBFS for the Trust hereunder shall be available for
inspection by the Trust's regulatory authorities during regular business
hours, upon reasonable prior written notice to USBFS, and will be
maintained and retained in accordance with applicable requirements of the
1940 Act. USBFS will not use, or permit the use of, names of end users for
the purpose of soliciting any business, product, or service whatsoever
except where the communication is necessary and appropriate for USBFS's
delivery of the System(s).
Appendix I
Eagle Portal (a/k/a "Advisor Information Source", or "AIS") for The Xxxxxxx
Funds
USBFS utilizes the Eagle Portal, a web-based report delivery system that
generates holdings, position, and tax reports. Data from IDC, CPORT, S&P,
and GICs populate the data warehouse from which reports are generated.
Reports can be customer run or scheduled for automatic delivery to a portal
inbox. This is an internal software application which is maintained and
monitored by internal staff.
Duties and Responsibilities of USBFS
USBFS shall:
A. Provide access to the System 24 hours a day, 7 days a week, subject to
scheduled maintenance and events outside of USBFS's reasonable
control. Unless an emergency is encountered, no routine maintenance
will occur during the hours of 8:00 a.m. to 3:00 p.m. Central Time.
B. Supply necessary software to access the System, if necessary.
C. Provide training and connectivity support as outlined in the standard
pricing model included herein.
D. Maintain and support the System, which shall include providing error
corrections, minor enhancements and interim upgrades to the System and
providing help desk support to provide assistance to the Trust's
employees and agents with their use of the System. Maintenance and
support, as used herein, shall not include (i) access to or use of any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made
generally available by USBFS to System customers, as determined solely
by USBFS or (ii) maintenance of customized features.
E. Provide monthly invoices of fees as stated in the standard pricing
model or the fee schedule.
F. Establish systems to guide assist and permit End Users (as defined
below) who access the System from the Trust's web site(s) to
electronically perform inquiries and create and transmit transaction
requests to USBFS.
G. Address and mail, at the Trust's expense, notification and promotional
mailings and other communications provided by the Trust to
shareholders regarding the availability of the System.
H. Issue to each shareholder, financial adviser or other person or entity
who desires to make inquiries concerning the Trust or perform
transactions in accounts with the Trust using the System (the "End
User") a unique user ID and password for authentication purposes,
which may be changed upon an End User's reasonable request in
accordance with policies to be determined by USBFS and the Trust.
USBFS will require the End User to use his/her user ID and password in
order to access the System.
I. Utilize encryption and secure transport protocols intended to prevent
fraud and ensure confidentiality of End User accounts and
transactions. In no event shall USBFS use encryption weaker than a
40-bit RC4 Stream. USBFS will take reasonable actions, including
periodic scans of Internet interfaces and the System, to protect the
Internet web site that provides the System and related network,
against viruses, worms and other data corruption or disabling devices,
and unauthorized, fraudulent or illegal use, by using appropriate
virus detection and destructive software and by adopting such other
security procedures as may be necessary.
J. Establish and provide to the Trust written procedures, which may be
amended from time to time by USBFS with the written consent of the
Trust, regarding End User access to the System. Such written
procedures shall establish security standards for the System,
including, without limitation:
(1) Encryption/secure transport protocols.
(2) End User lockout standards (e.g., lockout after three
unsuccessful attempts to gain access to the System).
(3) User ID and password issuance and reissuance standards.
(4) Access standards, including limits on access to End Users whose
accounts are coded for privilege.
(5) Automatic logoff standards (e.g., if the session is inactive for
longer than 15 minutes).
K. Ensure that the HTTPS Server is accessible via the Internet.
Duties and Responsibilities of the Trust
The Trust shall:
A. Provide and maintain, at its own expense, one or more personal
computers for accessing the System that will accommodate and be
compatible with the software provided by USBFS.
B. Follow any and all procedures necessary to access the System as may be
set forth in any user guide or instruction manual provided and which
may be amended or supplemented from time to time.
C. Provide for the security of all codes and system access mechanisms
relating to the System and implement such security procedures and/or
devices to ensure the integrity of the System when accessed by the
Trust from its principal place of business.
D. The Trust hereby acknowledges that all programs, software, manuals and
other written information relating to the System shall remain the
exclusive property of USBFS at all times.
E. The Trust acknowledges that it is responsible for determining the
suitability and accuracy of the information obtained through its
access to the System. USBFS MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESSED OR IMPLIED, WITH RESPECT TO THE SUITABILITY AND ACCURACY OF
FUND DATA, SYSTEMS, INDUSTRY INFORMATION AND PROCESSES ACCESSED
THROUGH THE SYSTEM. However, USBFS will assist the Trust in verifying
the accuracy of any of the information made available to the Trust
through the System and covered by this Agreement.
F. In the event of termination of this Agreement, the Trust shall
immediately end its access to the System and return all codes, system
access mechanisms, programs, manuals and other written information to
USBFS, and shall destroy or erase all such information on any
diskettes or other storage medium, unless such access continues to be
permitted pursuant to a separate agreement between the Trust and USBFS
that is in effect.
G. Assume exclusive responsibility for the consequences of any
instructions it may give to USBFS, for the Trust's or End Users'
failure to properly access the System in the manner prescribed by
USBFS, and for the Trust's failure to supply accurate information to
USBFS.
H. Promptly notify USBFS of any problems or errors with the System of
which the Trust becomes aware or any changes in policies or procedures
of the Trust requiring changes to the System.
I. Comply, and instruct End Users to comply, with all the End User
enrollment and authorization procedures.
J. Obtain and pay for connectivity to the HTTPS Server.
K. Have the proper equipment and software to enable End Users to access
the HTTPS Server and download the files and obtain all related
maintenance, including support in the event of download problems.
FEES: No additional fees for the Advisor Information Service
Except to the extent supplemented hereby, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by a duly authorized officer on one or more counterparts as of the date
and year first written above.
THE XXXXXXX FUNDS U.S. BANCORP FUND SERVICES, LLC
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx X. XxXxx
Printed Name: Xxxxxxx Xxxxx Printed Name: Xxxxxxx X. XxXxx
Title: Treasurer Title: Sr. Vice President