SAMPLE
INBOUND CALL MANAGEMENT AND
FULFILLMENT SERVICES AGREEMENT
THIS AGREEMENT is made as of this __ day of _____, 200_, by and
between ________, a _________ business trust (the "Trust") and UMB
Distribution Services, LLC ("UMBDS").
WHEREAS, the Trust is registered under the Investment Company
Act of 1940, as amended (the "Act"), as an open-end management
investment company which is authorized to issue shares of beneficial
interests in separate series with each such series representing the
interests in a separate portfolio of securities and other assets;
WHEREAS, UMBDS offers various inbound call management and
fulfillment services to investment companies and others; and
WHEREAS, the Trust and UMBDS desire to enter into an agreement
pursuant to which UMBDS shall provide on behalf of the Trust certain
inbound call management and fulfillment services to such investment
portfolios of the Trust as are listed on Schedule A hereto and any
additional investment portfolios the Trust and UMBDS may agree upon
and include on Schedule A as such Schedule may be amended from time to
time (such investment portfolios and any additional investment
portfolios are individually referred to as a "Fund" and collectively
the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Appointment and Services
(a) The Trust hereby retains and does hereby authorize UMBDS
to provide the inbound call management and fulfillment services
described in Schedule B hereto, and UMBDS agrees to provide such
services, for the period and compensation and upon the terms set forth
in this Agreement.
(b) The Trust, at its cost, shall provide UMBDS with the
necessary scripts, instructions and all materials (including
prospectuses, reports, article reprints, stationery and envelopes) so
that UMBDS may provide the services described herein. Notwithstanding
anything herein to the contrary, UMBDS shall not be required to
provide any services or information that it believes, in its sole
discretion, to represent dishonest, unethical or illegal activity. In
no event shall UMBDS provide any investment advice or recommendations
to any party in connection with its services hereunder. All risk of
loss for the materials being inventoried by UMBDS on the Trust's
behalf shall be the responsibility of the Trust, and UMBDS shall not
be responsible for any loss to this material except as such loss may
be caused by UMBDS's gross negligence. UMBDS agrees to use due care
in the storage of such materials prior to their distribution. The
Trust shall provide UMBDS from time to time at the earliest
practicable date with such details as may reasonably be required
concerning media schedules, anticipated call volume and other related
information so as to facilitate preparation by UMBDS to provide the
services hereunder.
(c) The Trust shall cause the Trust's officers, trustees,
investment adviser(s) and sub-advisers, legal counsel, independent
accountants, custodian and other service providers and agents, past or
present, for the Funds to cooperate with UMBDS and to provide UMBDS
with such information, documents and advice as necessary and/or
appropriate or as requested by UMBDS, in order to enable UMBDS to
perform its duties hereunder. In connection with its duties
hereunder, UMBDS shall (without investigation or verification) be
entitled, and is hereby instructed to, rely upon any and all
instructions, advice, information or documents provided to UMBDS by an
officer or representative of the Funds or by any of the aforementioned
persons. UMBDS shall be entitled to rely on any document that it
reasonably believes to be genuine and to have been signed or presented
by the proper party. Fees charged by such persons shall be an expense
of the Trust. UMBDS shall not be held to have notice of any change of
authority of any officer, agent, representative or employee of the
Trust, investment adviser(s) or service provider until receipt of
written notice thereof from the Trust. As used in this Agreement, the
term "investment adviser" includes all sub-advisers or persons
performing similar services.
2. Fees and Expenses
In consideration of the services rendered pursuant to this Agreement,
the Trust shall pay UMBDS such fees, charges and expenses as are set
forth in Schedule C hereto. Fees shall be adjusted in accordance with
Schedule C or as otherwise agreed to by the parties from time to time.
UMBDS may, at its option, arrange to have various service providers
submit invoices directly to the Trust for payment of out of pocket
expenses reimbursable hereunder. All invoices rendered by UMBDS shall
be paid within fifteen (15) days of the date of invoice. At the
option of UMBDS, unpaid invoices accrue a finance charge of one and
one-half percent (1%) per month, after the due date. In the event
UMBDS requests advance payment, UMBDS shall not be obligated to incur
such expenses or perform the related service(s) until payment is
received.
3. Term; Amendments; Assignment
(a) This Agreement shall become effective with respect to each
Fund listed on Schedule A as of the date hereof and, with respect to
each Fund not in existence on that date, on the date an amendment to
Schedule A to this Agreement relating to that Fund is executed. This
Agreement shall continue in effect with respect to each Fund until
terminated as provided herein.
(b) This Agreement may be terminated by either party with
respect to any one or more particular Funds without penalty upon not
less than sixty (60) days' written notice to the other party (which
notice may be waived by the party entitled to such notice. Upon
termination of this Agreement, UMBDS shall promptly return to the
Trust all applicable materials that are the property of the Trust.
All amounts due and owing to UMBDS as of such termination shall become
immediately due and payable and the Trust shall pay such amounts at
the termination date. The Trust shall be responsible for all expenses
associated with the movement (or duplication) of records and materials
and conversion thereof to a successor services agent, including all
reasonable trailing expenses incurred by UMBDS.
(c) Except as expressly provided in this Agreement, the terms
of this Agreement shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by a written instrument
signed by UMBDS and the Trust. UMBDS may from time to time, in its
discretion, appoint one or more other parties to carry out some or all
of its responsibilities under this Agreement.
(d) Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control, as hereinafter defined, of
the Trust's investment adviser or sponsor, the Trust's ability to
terminate this Agreement pursuant to this Section 3 shall be suspended
from the time of such agreement until eighteen months after the Change
of Control. For purposes of this Agreement, a "Change of Control" of
the investment adviser or sponsor means a change in ownership or
control of more than fifty percent (50%) of the common stock or shares
of beneficial interest of such investment adviser or sponsor or its
parent company.
4. Non-Exclusivity; Confidentiality
(a) The services of UMBDS hereunder are not deemed to be
exclusive. UMBDS may render inbound call management and fulfillment
services and any other services to others, including other investment
companies.
(b) UMBDS agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Trust all
records relative to the Funds' shareholders, not to use such records
and information for any purpose other than performance of its
responsibilities and duties hereunder, and not to disclose such
information except where UMBDS may be exposed to civil or criminal
proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities or court process, when
subject to governmental or regulatory audit or investigation, or when
so requested by the Trust. In case of any requests or demands for
inspection of the records of the Funds, UMBDS will endeavor to notify
the Trust promptly and to secure instructions from a representative of
the Trust as to such inspection. Records and information which have
become known to the public through no wrongful act of UMBDS or any of
its employees, agents or representatives, and information which was
already in the possession of UMBDS prior to receipt thereof, shall not
be subject to this paragraph.
5. Limitation of Liability
(a) The UMBDS shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Funds in connection
with the matters to which this Agreement relates, except for a loss
resulting from the UMBDS's willful misfeasance, bad faith or gross
negligence in the performance of its duties or from reckless disregard
by it of its obligations and duties under this Agreement.
Furthermore, the UMBDS shall not be liable for (i) any action taken or
omitted to be taken in accordance with or in reliance upon written or
oral instructions, advice, data, documents or information (without
investigation or verification) received by the UMBDS from an officer
or representative of the Trust or from a representative of any of the
parties referenced in Section 1 or (ii) any action taken or omission
by a Fund, the Trust, investment adviser(s) or any past or current
service provider.
(b) The Trust agrees to indemnify and hold harmless the UMBDS,
its employees, agents, officers, directors, members, affiliates and
nominees ("Indemnified Parties") from and against any and all claims,
demands, actions and suits, and from and against any and all
judgments, liabilities, losses, damages, costs, charges, reasonable
counsel fees and other expenses of every nature and character which
may be asserted against or incurred by any Indemnified Party or for
which any Indemnified Party may be held liable (a "Claim") arising out
of or in any way relating to (i) UMBDS's actions or omissions except
to the extent a Claim resulted from the UMBDS's willful misfeasance,
bad faith, or gross negligence in the performance of its duties
hereunder or from reckless disregard by it of its obligations and
duties hereunder; (ii) UMBDS's reliance on, implementation of, or use
of (without investigation or verification) advice, instructions,
requests, directions, information, data, security valuations, records
and documents received by UMBDS from any party referenced in Section 2
hereof or other representative of the Trust, (iii) any breach of any
of the Trust's obligations, representations or warranties hereunder;
or (iv) any action taken by or omission of the Trust, investment
adviser(s) or any other past or current service provider.
(c) Notwithstanding anything herein to the contrary, UMBDS
will be excused from its obligation to perform any act, service or
obligation required of it hereunder for the duration that such
performance is prevented by events beyond its reasonable control and
it shall not be responsible for any damage, loss of data or documents,
errors, delay or any other loss whatsoever caused thereby. UMBDS
will, however, take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond
its control. The indemnity and defense provisions set forth in this
Section 5 shall indefinitely survive the termination and/or assignment
of this Agreement.
(d) In no event and under no circumstances shall UMBDS, its
affiliates or any of its or their officers, directors, agents or
employees be liable to anyone, including, without limitation, the
other party, under any theory of tort, contract, strict liability or
other legal or equitable theory for lost profits, exemplary, punitive,
special, indirect or consequential damages for any act or failure to
act under any provision of this Agreement regardless of whether such
damages were foreseeable and even if advised of the possibility
thereof.
6. Governing Law; Invalidity
This Agreement shall be governed by Wisconsin law, excluding the laws
on conflicts of laws. To the extent that the applicable laws of the
State of Wisconsin, or any of the provisions herein, conflict with the
applicable provisions of the Act, the latter shall control, and
nothing herein shall be construed in a manner inconsistent with the
Act or any rule or order of the Securities and Exchange Commission
thereunder. Any provision of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case,
the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties.
7. Miscellaneous
(a) The 800-telephone number that is transferred to UMBDS, in
order for UMBDS to provide the services hereunder, shall remain the
property of the Trust. In the event that this Agreement is
terminated, UMBDS shall assert no claim in or to this telephone
number.
(b) This Agreement and the Schedules incorporated hereto
constitute the full and complete understanding and agreement of UMBDS
and the Trust and supersedes all prior negotiations, understandings
and agreements.
8. Notices
Any notice required or permitted to be given by either party to
the other shall be in writing and shall be deemed to be effective upon
the date specified on the return receipt when sent by registered or
certified mail, postage prepaid, return receipt requested, as follows:
Notice to UMBDS shall be sent to UMB Distribution Services, LLC, 000
Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, XX, 00000, Attention: Xxxxx
Xxxxxxx, and notice to the Trust shall be sent to
______________________, Attention: ____________.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by a duly authorized officer as of the day
and year first above written.
___________________________
(the "Trust")
By:
___________________________
President
UMB DISTRIBUTION SERVICES,
LLC
("UMBDS")
By:
___________________________
Schedule A
to the
Inbound Call Management and Fulfillment Services Agreement
by and between
___________________________
and
UMB Distribution Services, LLC
Name of Funds
Schedule B
to the
Inbound Call Management and Fulfillment Services Agreement
by and between
____________________________
and
UMB Distribution Services, LLC
SERVICES
Inbound Call Management
Standard business hours: 7 a.m. - 7 p.m. CST, Monday through
Friday (except major holidays)
Qualify callers
Provide detailed responses to fund inquiries (not scripted)
Automated voice response system
Custom database maintenance
Periodic activity reporting:
Names, addresses, telephone numbers and types of inquiries
Call tracking, by:
Fund
Zip code or geographic region
Source code
Call switching
Complex calls can be forwarded to fund, if desired
Transfer calls to transfer agent
Fulfillment
Standard business hours: Monday through Friday 8:00 - 5:00 CST
(except major holidays)
Literature requests fulfilled and mailed typically within 24 hours
(but at most within 3 business days with respect to all documents
required by the SEC to be sent within such timeframes).
On-site inventory control
Customized investor kit assembly and literature fulfillment
Personalized letters developed by Distributor or by UMBDS (with
prior approval by Distributor)
Fulfill literature requests downloaded from the Trust's Internet
site through UMBDS 0.Xxx Fulfillment service
Conduct follow-up mail campaign
Fulfill literature requests received via Reader Service campaign
Ability to supply 3rd party channels with fund literature
Periodic reporting
Advanced notice of need to order additional materials
Mailing of premium items
Miscellaneous
Fulfillment Reference Manual maintenance
Fulfillment representative training
The duties of the UMBDS shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted
against the UMBDS hereunder. These services do not include
correcting, verifying or addressing any prior actions or inactions by
any Fund or by any prior service provider. To the extent the UMBDS
agrees to take such actions, those actions taken shall be deemed part
of this service schedule.
Schedule C
to the
Inbound Call Management and Fulfillment Services Agreement
by and between
______________________________
and
UMB Distribution Services, LLC
FEE SCHEDULE
(to be provided)
