EX-99.23(h)(6)
TRANSFER AGENCY SERVICES AGREEMENT
THIS TRANSFER AGENCY SERVICES AGREEMENT ("Agreement") is made as of
December 15, 2006 by and between PFPC Inc., a Massachusetts corporation
("PFPC"), and JNL Investors Series Trust, a Massachusetts business trust
("Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement.
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person
duly authorized by the Fund's Board of Trustees to give Oral
Instructions and Written Instructions on behalf of the Fund. An
Authorized Person's scope of authority may be limited by setting forth
such limitation in a written document signed by both parties hereto.
(d) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person. PFPC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(e) "SEC" means the U.S. Securities and Exchange Commission.
(f) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "SHARES" mean the shares of beneficial interest of any series or class
of the Fund.
(h) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by an
Authorized Person and received by PFPC, or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered electronically (with respect to sub-item (ii) above) or by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the Fund
in accordance with the terms set forth in this Agreement. PFPC accepts such
appointment and agrees to furnish such services.
Notwithstanding the foregoing, the parties agree that upon ninety (90)
days' written notice to PFPC, the Fund may assume "in-house" the sole
responsibility to provide customer call center operations (e.g., servicing
customer calls and inquiries and relating to services provided by PFPC
hereunder, including a toll-free telephone number for use by Customers) ("Call
Center Operations") and/or print mail services (as set forth in Section 14(m)
herein) and/or proxy solicitation services (as set forth in Section 14(n)
herein); and from the date of the Fund's assumption of Call-Center Operations,
print mail services and/or proxy solicitation services, respectively, the
mutually agreed upon fees attributable the services the Fund assumes in-house
shall cease to accrue. In the event the Fund assumes Call Center Operations,
print mail services and/or proxy solicitation services, each Party shall advise
the other Party promptly of the receipt of any information it receives that
would be necessary or appropriate for the other Party to know in order to
provide the services relating to Call Center Operations and the services
contemplated by this Agreement or as may be necessary to comply with applicable
law.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund or any
other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or this Agreement or of any
vote, resolution or proceeding of the Fund's Board of Trustees or of
the Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions so that PFPC receives the Written Instructions by
the close of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions are not
received by PFPC or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely upon
such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from Authorized Persons of the
Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PFPC, at the option of
PFPC); provided that PFPC will notify the Fund should PFPC request any
such advice from counsel. The parties agree to use good faith efforts
to properly allocate the expense of any such counsel fees between the
parties.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund, and the advice it receives from counsel, PFPC may rely upon
and follow the advice of counsel upon notification to the Fund.
(d) PROTECTION OF PFPC. PFPC shall be indemnified by the Fund and without
liability for any action PFPC takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions PFPC
receives from or on behalf of the Fund or from counsel and which PFPC
believes, in good faith, to be consistent with those directions or
advice or Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon PFPC (i)
to seek such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions or
advice or Oral Instructions or Written Instructions.
6. RECORDS; VISITS. The books and records pertaining to the Fund, which are in
the possession or under the control of PFPC, shall be the property of the Fund.
Such books and records shall be prepared and maintained as required by the 1940
Act and other applicable Securities Laws, rules, and regulations. The Fund and
Authorized Persons shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PFPC to the Fund or to
an Authorized Person, at the Fund's expense.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include:
(i) Any data or information that is competitively sensitive material,
and not generally known to the public, including, but not limited
to, information about product plans, marketing strategies,
finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future
business activities of the Fund or PFPC, their respective
subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them;
(ii) Any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund
or PFPC a competitive advantage over its competitors;
(iii) All confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality
obligations if it:
(i) Is already known to the receiving party from public sources at
the time it is obtained;
(ii) Is or becomes publicly known or available through no wrongful act
of the receiving party;
(iii) Is rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality;
(iv) Is released by the protected party to a third party without
restriction;
(v) Is requested or required to be disclosed by the receiving party
pursuant to a court order, subpoena, governmental or regulatory
agency request or law (provided the receiving party will provide
the other party written notice of the same, to the extent such
notice is permitted);
(vi) Is relevant to the defense of any claim or cause of action
asserted against the receiving party;
(vii) Is Fund information provided by PFPC in connection with an
independent third party compliance or other review;
(viii) Is necessary for PFPC to release such information in connection
with the provision of services under this Agreement; and/or
(ix) Has been or is independently developed or obtained by the
receiving party.
(c) Each party hereby agrees:
(i) not to disclose or use such Confidential Information of the other
party except as permitted under this Agreement;
(ii) to establish and maintain procedures reasonably designed to
maintain the security and privacy of all such Confidential
Information; and
(iii) to reasonably cooperate with the other party and provide
reasonable assistance in ensuring compliance of such applicable
"Privacy Laws" (as defined in Section 15 herein) to the extent
applicable to either party.
(d) The provisions of this Section 7 shall survive termination of this
Agreement for a period of (3) years after such termination.
8. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such accountants in connection with their
engagement by the Fund.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized and developed by or for PFPC in
connection with the services provided by PFPC to the Fund. Notwithstanding the
foregoing, the parties acknowledge the Fund shall retain all ownership rights in
Fund data which resides on the PFPC System.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures or loss or
destruction of data, PFPC shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC shall have no liability
with respect to the loss of data or service interruptions caused by equipment
failure, provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, ordinary negligence or reckless disregard of its duties
or obligations under this Agreement. 11. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term of this
Agreement, the Fund will pay to PFPC a fee or fees as may be agreed to
from time to time in writing by the Fund and PFPC. In addition, the
Fund agrees to pay, and will be billed separately in arrears for,
reasonable expenses incurred by PFPC in the performance of its duties
hereunder.
(b) PFPC shall establish certain cash management accounts ("Service
Accounts") required to provide services under this Agreement. The Fund
acknowledges: (i) PFPC may receive investment earnings from sweeping
the funds in such Service Accounts into investment accounts including,
but not limited, investment accounts maintained at an affiliate or
client of PFPC; (ii) balance credits earned with respect to the
amounts in such Service Accounts ("Balance Credits") will be used to
offset the banking service fees imposed by the cash management service
provider ("Banking Service Fees");(iii) PFPC shall retain any excess
Balance Credits for its own use; (iv) Balance Credits will be
calculated and applied toward the Fund's Banking Service Fees
regardless of the Service Account balance sweep described in
Sub-Section (i) herein; and (v) PFPC may use the services of
third-party vendors in connection with the issuance of redemption and
distribution checks and shall retain any benefits obtained from any
arrangements with such vendors, including any commission or return on
float paid to it by any such vendors. PFPC will provide a quarterly
report to the Board of Trustees of the Fund detailing the amount of
excess Balance Credits attributable to the Fund that are retained by
PFPC.
(c) The undersigned hereby represents and warrants to PFPC that:(i) the
terms of this Agreement; (ii) the fees and expenses associated with
this Agreement; and (iii) any benefits accruing to PFPC or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC to such adviser or sponsor or any
affiliate of the Fund relating to the Agreement have been fully
disclosed to the Board of Trustees of the Fund and that, if required
by applicable law, such Board of Trustees has approved or will approve
the terms of this Agreement, any such fees and expenses, and any such
benefits. PFPC represents to the Fund that PFPC disclosed to the Board
(i) the fees and expenses associated with this Agreement, and (ii) any
fee waivers, conversion cost reimbursements, up front payments,
signing payments or periodic payments made by, or to be made by, PFPC
relating to the Agreement.
12. INDEMNIFICATION. (a) The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates, including their respective officers, directors, agents
and employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and disbursements
and liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly from any action or
omission to act which PFPC takes in connection with the provision of services to
the Fund. Neither PFPC, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability) caused by PFPC's or
its affiliates' own willful misfeasance, bad faith, gross negligence or reckless
disregard in the performance of PFPC's activities under this Agreement, provided
that in the absence of a finding to the contrary, the acceptance, processing
and/or negotiation of a fraudulent payment for the purchase of Shares shall be
presumed not to have been the result of PFPC's or its affiliates own willful
misfeasance, bad faith, gross negligence or reckless disregard of such duties
and obligations under this Agreement. The provisions of this Section 12 shall
survive termination of this Agreement.
(b) PFPC will indemnify, defend, and hold harmless the Fund and its
officers, directors, and employees, from all claims, suits, actions,
damages, losses, liabilities, obligations, costs and reasonable
expenses (including attorneys' fees and court costs, travel costs and
other reasonable out-of-pocket costs related to dispute resolution) to
the extent arising directly out of PFPC's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement.
(c) LEGAL ACTION AGAINST INDEMNIFIED PARTY.
(i) NOTICE OF THE ACTION. A party that seeks indemnification under
this Agreement must promptly give the other party written notice
of any legal action, but a delay in notice does not relieve an
indemnifying party of any liability to an indemnified party,
except to the extent the indemnifying party shows that the delay
prejudiced the defense of the action.
(ii) PARTICIPATING IN OR ASSUMING THE DEFENSE. The indemnifying party
may participate in the defense at any time or it may assume the
defense by giving notice to the other party. After assuming the
defense, the indemnifying party: must select an attorney that is
satisfactory to the other party; is not liable to the other party
for any later attorney's fees or for any other later expenses
that the other party incurs, except for reasonable investigation
costs; must not compromise or settle the action without the other
party's consent (but the other party must not unreasonably
withhold its consent); and is not liable for any compromise or
settlement made without its consent.
(iii) FAILING TO ASSUME THE DEFENSE. If the indemnifying party fails
to participate in or assume the defense within 15 days after
receiving notice of the action, the indemnifying party is bound
by any determination made in the action or by any compromise or
settlement made by the other party.
The provisions of this Section 12 state each party's entire obligation with
respect to any claim of indemnification.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Fund in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of PFPC's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFPC's willful misfeasance, bad faith, gross negligence, or
reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) except
to the extent caused by a failure of PFPC to maintain a reasonable
disaster recovery and business continuity plan as required under
Section 10 above, PFPC shall not be liable for losses, delays,
failure, errors, interruption or loss of data occurring directly or
indirectly by reason of circumstances beyond its reasonable control,
including without limitation acts of God; action or inaction of civil
or military authority; public enemy; war; terrorism; riot; fire;
flood; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of
nature; or non-performance by a third party; and (ii) PFPC shall not
be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which PFPC
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by PFPC or its affiliates.
(d) The cumulative liability of PFPC to the Fund for all losses, claims,
suits, controversies, breaches or damages of any nature (including but
not limited to those arising out of or related to this Agreement and
regardless of the form of action or legal theory shall not exceed the
greater of (i) $1,000,000 or (ii) the aggregate of the fees received
by PFPC for services provided under the Agreement during the twenty
four (24) months immediately prior to the date of such loss or damage.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible. (f) The provisions of this Section 13
shall survive termination of this Agreement.
14. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate and pay 12b-1 payments (PFPC to provide reporting to
the Fund);
(ii) Calculate and pay commissions to selling representatives;
(iii) Monitor sales charge breakpoints;
(iv) Monitor Letter of Intent and Rights of Accumulation, and process
accordingly;
(v) Convert C shares to A shares after 10 years (or such other period
as provided via Written Instructions);
(vi) Assess front end and/or back end CDSC charges on transactions;
(vii) Provide sales activity and information reasonably requested by
Blue Sky registration agent;
(viii) Maintain shareholder registrations;
(ix) Review new applications and correspond with shareholders to
complete or correct information;
(x) Direct payment processing of checks or wires;
(xi) Prepare and certify stockholder lists in conjunction with proxy
solicitations;
(xii) Countersign share certificates;
(xiii) Prepare and mail to shareholders confirmation of activity;
(xiv) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(xv) Mail duplicate confirmations to broker-dealers of their clients'
activity, whether executed through the broker-dealer or directly
with PFPC;
(xvi) Provide periodic shareholder lists and statistics to the Fund;
(xvii) Provide detailed data for underwriter/broker confirmations;
(xviii) Prepare periodic mailing of year-end tax and statement
information;
(xix) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity;
(xx) Perform other participating broker-dealer shareholder services as
may be agreed upon in writing from time to time;
(xxi) Accept and post daily Share purchases and redemptions;
(xxii) Accept, post and perform shareholder transfers and exchanges;
(xxiii) Issue and cancel certificates (when requested in writing by
the shareholder);
(xxiv) Perform certain administrative and ministerial duties relating
to opening, maintaining and processing transactions for
shareholders or financial intermediaries that trade shares
through the NSCC; and
(xxv) Provide other services as agreed upon in writing by PFPC and the
Fund.
(b) PURCHASE OF SHARES. PFPC shall issue and credit an account of a
shareholder, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order in completed proper form (generally deemed "good
order");
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of monies for such order to
the Fund's custodian.
(c) REDEMPTION OF SHARES. PFPC shall process requests to redeem Shares as
follows:
(i) All requests to transfer or redeem Shares and payment therefor
shall be made in accordance with the Fund's prospectus, when the
shareholder tenders Shares in proper form, accompanied by such
documents as PFPC reasonably may deem necessary.
(ii) PFPC reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement on the instructions is
valid and genuine and that the requested transfer or redemption
is legally authorized, and it shall incur no liability for the
refusal, in good faith, to process transfers or redemptions which
PFPC, in its good judgment, deems improper or unauthorized, or
until it is reasonably satisfied that there is no basis to any
claims adverse to such transfer or redemption.
(iii) When Shares are redeemed, PFPC shall deliver to the Fund's
custodian ("Custodian") and the Fund or its designee a
notification setting forth the number of Shares redeemed. Such
redeemed Shares shall be reflected on appropriate accounts
maintained by PFPC reflecting outstanding Shares of the Fund and
Shares attributed to individual accounts. PFPC will also
calculate and withhold any required federal taxes for the
individual accounts.
(iv) PFPC shall, upon receipt of the monies provided to it by the
Custodian for the redemption of Shares, pay such monies as are
received from the Custodian, all in accordance with the
procedures established from time to time between PFPC and the
Fund.
(v) When a broker-dealer notifies PFPC of a redemption desired by a
customer, and the Custodian provides PFPC with funds, PFPC shall
prepare and send the redemption check to the broker-dealer and
made payable to the broker-dealer on behalf of its customer,
unless otherwise instructed in writing by the broker-dealer.
(vi) PFPC shall not process or effect any redemption requests with
respect to Shares of the Fund after receipt by PFPC or its agent
of notification of the suspension of the determination of the net
asset value of the Fund.
(d) DIVIDENDS AND DISTRIBUTIONS. Upon a resolution of the Fund's Board of
Trustees authorizing the declaration and payment of dividends and
distributions and Written Instructions to PFPC, PFPC shall issue
dividends and distributions declared by the Fund in Shares, or, upon
shareholder election, pay such dividends and distributions in cash, if
provided for in the Fund's prospectus. Such issuance or payment, as
well as payments upon redemption as described above, shall be made
after deduction and payment of the required amount of monies to be
withheld in accordance with any applicable tax laws or other laws,
rules or regulations. PFPC shall mail to the Fund's shareholders such
tax forms and other information, or permissible substitute notice,
relating to dividends and distributions paid by the Fund as are
required to be filed and mailed by applicable law, rule or regulation.
PFPC shall prepare, maintain and file with the IRS and other
appropriate taxing authorities reports relating to all dividends above
a stipulated amount paid by the Fund to its shareholders as required
by tax or other law, rule or regulation.
(e) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC may arrange, in accordance with the prospectus, for issuance
of Shares obtained through: (A) Any pre-authorized check plan;
and (B) Direct purchases through broker wire orders, checks and
applications.
(ii) PFPC may arrange, in accordance with the prospectus, for a
shareholder's:
(A) Exchange of Shares for shares of another fund with
which the Fund has exchange privileges;
(B) Automatic redemption from an account where that
shareholder participates in a automatic redemption
plan; and/or
(C) Redemption of Shares from an account with a
checkwriting privilege.
(f) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written Instructions, PFPC
shall mail all communications by the Fund to its shareholders,
including:
(i) Reports to shareholders (where applicable);
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices; and
(v) Tax form information.
(g) RECORDS. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of Shares held and number and class of Shares
for which certificates, if any, have been issued, including
certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and the
date and price for all transactions on a shareholder's account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to: (A) perform any
calculations required by this Agreement, and/or (B) to perform
service pursuant to this Agreement.
(h) LOST OR STOLEN CERTIFICATES. PFPC shall place a stop notice against
any certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements for reporting such loss or
alleged misappropriation. A new certificate shall be registered and
issued only upon:
(i) The shareholder's pledge of a lost instrument bond or such other
appropriate indemnity bond issued by a surety company approved by
PFPC; and
(ii) Completion of a release and indemnification agreement signed by
the shareholder to protect PFPC and its affiliates.
(i) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from any Fund
shareholder to inspect stock records, PFPC will notify the Fund and
the Fund will issue instructions granting or denying each such
request. Unless PFPC has acted contrary to the Fund's instructions,
the Fund agrees to and does hereby release PFPC from any liability for
refusal of permission for a particular shareholder to inspect the
Fund's stock records.
(j) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES. Upon receipt of
Written Instructions, PFPC shall cancel outstanding certificates
surrendered by the Fund to reduce the total amount of outstanding
shares by the number of shares surrendered by the Fund.
(k) LOST SHAREHOLDERS. PFPC shall perform such services as are required in
order to comply with rule 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rule"), including, but not limited to, those set forth
below. PFPC may, in its sole discretion, use the services of a third
party to perform some of or all such services, including:
(i) Documentation of search policies and procedures;
(ii) Execution of required searches;
(iii) Tracking results and maintaining data sufficient to comply with
the Lost Shareholder Rules; and
(iv) Preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for any
escheatment services.
(l) RETIREMENT PLANS.
(i) In connection with the individual retirement accounts, simplified
employee pension plans, rollover individual retirement plans,
educational IRA's and XXXX individual retirement accounts ("XXX
Plans"), 403(b) Plans and money purchase and profit sharing plans
("Qualified Plans") and such other individual retirement accounts
as the parties mutually agree in writing (collectively,
"Retirement Plans") within the meaning of Section 408 of the
Internal Revenue Code of 1986, as amended ("Code"), sponsored by
the Fund for which contributions of the Fund's shareholders
("Participants") are invested solely in Shares of the Fund, PFPC
shall provide the following administrative services:
(A) Establish a record of types and reasons for distributions
(i.e., attainment of age 59-1/2, disability, death, return
of excess contributions, etc.);
(B) Record method of distribution requested and/or made;
(C) Receive and process designation of beneficiary forms
requests;
(D) Examine and process requests for direct transfers between
custodians/trustees, transfer and pay over to the successor
assets in the account and records pertaining thereto as
requested;
(E) Prepare any annual reports or returns required to be
prepared and/or filed by a custodian of a Retirement Plan,
including, but not limited to, an annual fair market value
report, Forms 1099R and 5498; and file same with the IRS and
provide same to Participant/Beneficiary, as applicable; and
(F) Perform applicable federal withholding and send
Participants/Beneficiaries an annual TEFRA notice regarding
required federal tax withholding.
(ii) PFPC shall arrange for PFPC Trust Company to serve as custodian
for the Retirement Plans sponsored by the Fund.
(iii) With respect to the Retirement Plans, PFPC shall provide the
Fund with the associated Retirement Plan documents for use by the
Fund and PFPC shall be responsible for the maintenance of such
documents in compliance with all applicable provisions of the
Code and the regulations promulgated thereunder.
(m) PRINT MAIL. Subject to Section 2 herein, the Fund hereby engages PFPC
as its print/mail service provider with respect to those items and for
such fees as may be agreed to from time to time in writing by the Fund
and PFPC.
(n) INTERNET SERVICES. Internet services will be provided subject to the
terms, provisions and obligations as described in Exhibit B as such
Exhibit B may be amended from time to time.
15. PRIVACY. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Regulation S-P, it shall not disclose the
non-public personal information of investors in the Fund obtained under this
Agreement, except as necessary to carry out the services set forth in this
Agreement or as otherwise permitted by applicable privacy laws or regulations
("Privacy Laws"). This provision shall survive termination of this Agreement.
16. COMPLIANCE. To the extent the other provisions of this Agreement require
PFPC to establish, maintain and implement written policies and procedures
reasonably designed to prevent violations of the Federal Securities Laws, as
defined in Rule 38a-1 under the 1940 Act, by PFPC as a service provider
thereunder, with respect to the services provided by PFPC under this Agreement
PFPC agrees to establish, maintain and implement or has established, maintains
and implements such policies and procedures, and PFPC agrees to provide such
assistance as may be reasonably requested from time to time by the Fund or the
Fund's Chief Compliance Officer or their designees in connection with their
oversight of such compliance by PFPC. In addition, PFPC will provide quarterly
Xxxxxxxx-Xxxxx certification.
17. ANTI-MONEY LAUNDERING. To the extent the other provisions of this Agreement
require PFPC to establish, maintain and monitor accounts of shareholders in the
Fund consistent with Securities Laws, and the Funds' Anti-Money Laundering
Policies and Procedures (which shall not be materially different than PFPC's AML
policies and procedures without PFPC's written consent), PFPC shall perform
reasonable actions necessary to help the Fund maintain compliance with Section
352 of the USA PATRIOT Act, as follows: In this regard, PFPC shall: (a)
establish and implement written internal policies, procedures and controls
reasonably designed to help prevent the Fund from being used to launder money or
finance terrorist activities; (b) provide for independent testing, by an
employee who is not responsible for the operation of PFPC's AML program or by an
outside party, for compliance with PFPC's established policies and procedures;
(c) designate a person or persons responsible for implementing and monitoring
the operation and internal controls of PFPC's AML program; and (d) provide
ongoing training of PFPC personnel relating to the prevention of
money-laundering activities. Upon the reasonable request of the Fund, PFPC shall
provide to the Fund: (x) a copy of PFPC's written AML policies and procedures
(it being understood such information is to be considered confidential and
treated as such and afforded all protections provided to confidential
information under this Agreement); (y) at the good faith option of PFPC, a copy
of a written assessment or report prepared by the party performing the
independent testing for compliance, or a summary thereof, or a certification
that the findings of the independent party are satisfactory; and (z) a summary
of the AML training provided for appropriate personnel. PFPC agrees to permit
inspections relating to its AML program by U.S. regulatory agencies with
appropriate jurisdiction and to make available to examiners from such
departments or regulatory agencies such information and records relating to its
AML program as such examiners shall reasonably request. Without limiting or
expanding the foregoing, the parties agree the provisions of this Section 17 do
not apply to Section 326 of the USA PATRIOT Act (or other sections other than
Section 352) or regulations promulgated thereunder.
18. CUSTOMER IDENTIFICATION PROGRAM ("CIP") AND SUSPICIOUS ACTIVITY REPORTING
("SAR") SERVICES.
(a) To help the Fund comply with its Customer Identification Program
(which the Fund is required to have under regulations issued under
Section 326 of the USA PATRIOT Act) PFPC will do the following:
(i) Implement procedures under which new accounts in the Fund are not
established unless PFPC has obtained the name, date of birth (for
natural persons only), address and government-issued
identification number (collectively, the "Data Elements") for
each corresponding Customer, as defined in 31 CFR 103.131 (for
purposes of this Agreement, Customers shall also include
Shareholders), except for accounts excluded from CIP by law or
regulation, such as a financial institution regulated by a
Federal functional regulator).
(ii) Use collected Data Elements to attempt to reasonably verify the
identity of each new Customer promptly before or after each
corresponding new account is opened. Methods may consist of
non-documentary methods (for which PFPC may use unaffiliated
information vendors to assist with such verifications) and
documentary methods (as permitted by 31 CFR 103.131), and may
include procedures under which PFPC personnel perform enhanced
due diligence to verify the identities of Customers the
identities of whom were not successfully verified through the
first-level (which will typically be reliance on results obtained
from an information vendor) verification process(es).
(iii) Record the Data Elements and maintain records relating to
verification of new Customers consistent with 31 CFR
103.131(b)(3).
(iv) Compare Customers with the U.S. Treasury Department's Office of
Foreign Asset Control ("OFAC") maintained "Specially Designated
National and Blocked Persons List" ("SDN List"), and where a
Customer matches the SDN List, report that Customer to both the
Funds and OFAC.
(v) Regularly report to the Fund about measures taken under (i)-(iv)
above.
(vi) If PFPC provides services by which prospective Customers may
subscribe for shares in the Fund via the Internet or telephone,
work with the Fund to notify prospective Customers, consistent
with 31 CFR 103.(b)(5), about the Fund's CIP.
(vii) Set forth on a separate fee schedule compensation amounts due
for these CIP Services.
(b) Notwithstanding anything to the contrary, and without expanding the
scope of the express language above, PFPC need not collect the Data
Elements for (or verify) prospective customer (or accounts) beyond the
requirements of relevant regulation (for example, PFPC will not verify
customers opening accounts through NSCC) and PFPC need not perform any
task that need not be performed for the Fund to be in compliance with
relevant regulation.
(c) Notwithstanding anything to the contrary, PFPC need not perform any of
the steps described above with respect to persons purchasing Shares
via exchange privileges.
19. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above and
unless terminated pursuant to its terms shall continue for a period of
three (3) years ("Initial Term").
(b) Upon the expiration of the Initial Term, either party may terminate
this Agreement by providing the other party with written notice. Such
notice must be received not less than ninety (90) days prior to the
expiration of the Initial Term or the then current Renewal Term.
(c) In the event of termination, all reasonable expenses associated with
movement of records and materials and conversion thereof to a
successor transfer agent will be borne by the Fund and paid to PFPC
prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder ("Defaulting Party") the other party
("Non-Defaulting Party") may give written notice thereof to the
Defaulting Party, and if such material breach shall not have been
remedied or substantial progress made to remedy such material breach
within thirty (30) days after such written notice is given, then the
Non-Defaulting Party may terminate this Agreement by giving thirty
(30) days written notice of such termination to the Defaulting Party.
In all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other rights it
might have under this Agreement or otherwise against the Defaulting
Party.
(e) Notwithstanding anything contained in this Agreement to the contrary,
should a merger, acquisition, change in control, re-structuring,
re-organization or any other decision involving the Fund or any
affiliate (as defined under the 0000 Xxx) of the Fund result in the
Fund's desire to cease to use PFPC as the provider of any of the
services set forth hereunder in favor of another service provider
prior to the expiration of the then current Initial or Renewal Term,
PFPC shall make a good faith effort to facilitate a conversion of
services to the Fund's successor service provider by the conversion
date requested by the Fund, however, there can be no guarantee that
PFPC will be able to facilitate such a conversion of services by such
conversion date.
(f) EARLY TERMINATION. In the event the Fund terminates this Agreement
during the first two years of this Agreement, prior to the conversion
to the successor service provider, (i) the payment of all fees to PFPC
as set forth herein shall be accelerated to a date prior to the
conversion or termination of services and calculated as if the
services had remained with PFPC until the expiration of the full two
years and calculated at the asset and/or Shareholder account levels,
as the case may be, on the date notice of termination was given to
PFPC. In the event the Fund terminates this Agreement prior to the end
of the Initial Term, prior to the conversion to the successor service
provider, PFPC shall be entitled to recoup any monthly minimum waived
fees as may be agreed upon between the parties. Notwithstanding the
foregoing, should the Fund terminate this Agreement as a result of
PFPC's material default, the payment of fees to PFPC shall not be
accelerated as set forth in the first sentence of this subsection
19(f) and PFPC shall not be entitled to recoup any monthly minimum
fees PFPC waived during the first year of this Agreement.
20. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other address as PFPC
may inform the Fund in writing); (b) if to the Fund, at 0 Xxxxxxxxx Xxx,
Xxxxxxx, XX 00000, Attention: Legal Contract Administrator and Xxxxxx Xxxx, 0000
Xxxxxx Xxxxxxxxx Xx., X.X. Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 2007, Attention: Xxxx
Xxxxx or (c) if to neither of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to have
been given three days after it has been mailed. If notice is sent by messenger,
it shall be deemed to have been given on the day it is delivered.
21. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
22. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or of The
PNC Financial Services Group, Inc., provided that PFPC gives the Fund thirty
(30) days' prior written notice of such assignment or delegation. To the extent
required by the rules and regulations of the NSCC and in order for PFPC to
perform the NSCC-related services, the Fund agrees that PFPC may delegate its
duties to any affiliate of PFPC that is a member of the NSCC.
23. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
24. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
25. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written approval
of PFPC, which approval shall not be unreasonably withheld or delayed.
(c) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(d) INFORMATION. The Fund will provide such information and documentation
as PFPC may reasonably request in connection with services provided by
PFPC to the Fund.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, PFPC hereby disclaims all representations and warranties,
express or implied, made to the Fund or any other person, including,
without limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of trade), of
any services or any goods provided incidental to services provided
under this Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this Agreement.
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify, and
record certain information that identifies each person who initially
opens an account with that financial institution on or after October
1, 2003. Certain of PFPC's affiliates are financial institutions, and
PFPC may, as a matter of policy, request (or may have already
requested) the Fund's name, address and taxpayer identification number
or other government-issued identification number, and, if such party
is a natural person, that party's date of birth. PFPC may also ask
(and may have already asked) for additional identifying information,
and PFPC may take steps (and may have already taken steps) to verify
the authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: ------------------------------------
Name:
Title:
JNL INVESTORS SERIES TRUST
By: ------------------------------------
Name: XXXXXX X. XXXXXX
Title: PRESIDENT
EXHIBIT A
THIS EXHIBIT A, dated as of December 15, 2006, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of December 15, 2006, between PFPC
Inc. and JNL Investors Series Trust.
PORTFOLIOS
Xxxxxxx Perspective 5 Fund - Class A
Xxxxxxx Perspective 5 Fund - Class C
Xxxxxxx Perspective Index 5 Fund - Class A
Xxxxxxx Perspective Index 5 Fund - Class C
Xxxxxxx Perspective 10 x 10 Fund - Class A
Xxxxxxx Perspective 10 x 10 Fund - Class C
Xxxxxxx Perspective Optimized 5 Fund - Class A
Xxxxxxx Perspective Optimized 5 Fund - Class C
Xxxxxxx Perspective Money Market Fund - Class A
EXHIBIT B
INTERNET SERVICES
1. DEFINITIONS. Any term not herein defined in this Exhibit B shall have the
meaning given such term in the Agreement. The following definitions shall apply
to this Exhibit B:
(a) "Client Data" means electronic transmissions of data to PFPC related
to the shareholders of the Fund.
(b) "Content" means all Fund Confidential Information, text, pictures,
sound, graphics, video and other data supplied by Fund or an End User
to PFPC in connection with the Internet Services, and as such
materials may be modified by Fund, or in accordance with Fund's
instructions, from time to time.
(c) "Data Sources" means one or more third-party entities that provide
Client Data or any other Content to the Fund Web Site or the Internet
Site.
(d) "End-User" shall mean any Client that accesses the PFPC System via
PFPC's Internet Site as described in this Exhibit B. End Users shall
also include Fund and its employees and contractors who need to access
the Internet Services in order to provide services to the Clients.
(e) "Fund Web Site" means the collection of electronic documents,
electronic files and pages residing on any computer system(s)
maintained on behalf of the Fund, connected to the Internet and
accessible by hypertext link through the World Wide Web to and from
Internet Site.
(f) "Inquiry" shall mean any access to the PFPC System via PFPC's Internet
Site initiated by an End-User which is not a Transaction.
(g) "Internet" shall mean the communications network comprised of multiple
communications networks linking education, government, industrial and
private computer networks.
(h) "Internet Services" means the services identified in Section 2 hereof
to be provided by PFPC utilizing the Fund Web Site, the Internet and
certain software, equipment and systems provided by PFPC,
telecommunications carriers and security providers (including but not
limited to firewalls and encryption), whereby Inquiries and/or
Transactions may be performed and Transactions may be requested by
accessing Internet Site via hypertext link from the Fund Web Site. The
term Services as used throughout the Agreement shall include the
Internet Services.
(i) "Internet Site" means the collection of electronic documents,
electronic files and pages residing on PFPC's computer system(s) (or
those elements of the computer system of one or more Internet Service
Providers ("ISPs") retained by PFPC and necessary for PFPC's services
hereunder), connected to the Internet and accessible by hypertext link
from the Fund Web Site through the World Wide Web, where the Inquiry
and Transaction data fields and related screens provided by PFPC may
be viewed.
(j) "Transaction" shall mean purchase, redemption, exchange or any other
activity involving the movement of Shares initiated by an End-User.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit B, PFPC
shall provide or perform, or shall retain other persons to provide or perform,
the following, at PFPC's expense (unless otherwise provided herein):
(a) Provide all computers, telecommunications equipment, encryption
technology and other materials and services reasonably necessary to
develop and maintain the Portal to permit persons to perform the
functions more fully described in the Implementation Services
Specifications;
(b) Provide installation services which shall include, review and approval
of the Fund's network requirements, recommending method of
establishing (and, as applicable, cooperate with the Fund to implement
and maintain) a hypertext link between the Internet Site and the Fund
Web Site and testing the network connectivity and performance;
(c) Establish systems to permit End-Users who access the Internet Site
from the Fund Web Site to electronically perform Inquiries and create
and transmit Transaction requests to PFPC;
(d) Provide a form of encryption that is generally available to the public
in the U.S. for standard Internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable
for this type of information and data) and exercise commercially
reasonable efforts to attempt to maintain the security and integrity
of the Internet Site;
(e) Maintain and promptly update all on-screen disclaimers, privacy
policies or notices, and copyright, trademark and service xxxx
notifications, if any, provided by Fund to PFPC in writing from time
to time, and all "point and click" features of the Internet Site
relating to Client acknowledgments and acceptance of such disclaimers
and notifications. PFPC shall track and maintain records of Client
acknowledgments and acceptance of such disclaimers and notifications
such that Fund shall be able to associate a specific Client with a
specific acknowledgement and acceptance;
(f) Monitor data communication lines involved in providing the Internet
Services and inform the Fund promptly of any detected malfunctions or
service interruptions;
(g) Scan PFPC's Internet interfaces and the Internet Services for viruses
and promptly remove any such viruses detected thereon; and
(h) Maintain and support of the Internet Services, which includes
providing error corrections, minor enhancements and interim upgrades
to the Internet Services which are made generally available to
Internet Services customers and providing help desk support to provide
assistance to Fund employees with the Fund' use of the Internet
Services; maintenance and support 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 PFPC to Internet Services
clients, as determined solely by PFPC; or (ii) maintenance of
customized features.
Notwithstanding anything in this Exhibit B or the Agreement to the
contrary, the Fund recognize and acknowledge that (i) a logon End-User ID and
password are required by End-Users to access the Internet Services; (ii)
End-User's Web Browser and ISP must support Secure Sockets Layer (SSL)
encryption technology; and (iii) PFPC will not provide any software for access
to the Internet, and that such software must be acquired by the Fund or End-User
from a third-party vendor at Fund's or End-User's sole cost and expense.
3. FUND RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, the Fund shall at its expense (unless otherwise provided herein):
(a) Provide, or retain other persons to provide, all computers,
telecommunications equipment, encryption technology and other
materials, services, equipment and software reasonably necessary to
develop and maintain the Fund Web Site, including the functionality
necessary to maintain the hypertext links to the Internet Services;
(b) Promptly provide PFPC written notice of changes in Fund policies or
procedures requiring changes to the Internet Services;
(c) Develop Internet marketing materials for End-Users and forward a copy
of appropriate marketing materials to PFPC;
(d) Revise and update pertinent materials, such as user agreements with
End-Users, to include the appropriate consents, notices and
disclosures for Internet Services, including disclaimers and
information reasonably requested by PFPC;
(e) Maintain all on-screen disclaimers and copyright, trademark and
service xxxx notifications, if any, provided by PFPC to the Fund in
writing from time to time, and all "point and click" features of the
Fund Web Site relating to acknowledgment and acceptance of such
disclaimers and notifications;
(f) Design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to the Internet
Services Site and the various Inquiry and Transaction web pages and
otherwise make the Fund Web Site available to End-Users; and
(g) Fund shall have responsibility for providing Content to be posted to
the Internet Site and Fund shall have sole responsibility for the
completeness and accuracy of Content provided by the Fund or third
parties posted and exhibited on the Internet Site and Fund understands
and acknowledges that PFPC accepts no responsibility or liability of
any kind for any consequences arising from the use of such Content
provided by the Fund or any third parties. PFPC shall be responsible
for PFPC provided Content, to the extent PFPC actually provides such
Content to be posted to the Internet Site.
4. DISCLAIMER OF RESPONSIBILITY.
Notwithstanding anything to the contrary contained in the Agreement or this
Exhibit B, PFPC shall not be obligated to ensure or verify the accuracy or
actual receipt, or the transmission, of any data or information contained in any
transmission via Internet Services or the consummation of any Inquiry or
Transaction request not actually received by PFPC. The Fund shall advise
End-Users to promptly notify the Fund or PFPC of any errors or inaccuracies in
Shareholder data or information transmitted via Internet Services.
5. PROPRIETARY RIGHTS.
(a) Each of the parties acknowledges and agrees that it obtains no rights
in or to any of the software, hardware, processes, trade secrets,
proprietary information or distribution and communication networks of
the other under this Exhibit B. Any software, interfaces or other
programs a party provides to the other under this Exhibit B shall be
used by such receiving party only during the term of this Exhibit B
and only in accordance with the provisions of this Exhibit B and the
Agreement. Any interfaces, other software or other programs developed
by one party shall not be used directly or indirectly by or for the
other party or any of its affiliates to connect such receiving party
or any affiliate to any other person, without the first party's prior
written approval, which it may give or withhold in its sole
discretion. 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.
(b) The Fund Web Site and Internet Site may contain certain intellectual
property, including, but not limited to, rights in copyrighted works,
trademarks and trade dress that is the property of the other party.
Each party retains all rights in such intellectual property that may
reside on the other party's web site, not including any intellectual
property provided by or otherwise obtained from such other party. To
the extent the intellectual property of one party is cached to
expedite communication, such party grants to the other a limited,
non-exclusive, non-transferable license to such intellectual property
for a period of time no longer than that reasonably necessary for the
communication. To the extent that the intellectual property of one
party is duplicated within the other party's web site to replicate the
"look and feel," "trade dress" or other aspect of the appearance or
functionality of the first site, that party grants to the other a
limited, non-exclusive, non-transferable license to such intellectual
property for the duration of this Exhibit B. This license is limited
to the intellectual property needed to replicate the appearance of the
first site and does not extend to any other intellectual property
owned by the owner of the first site. Each party warrants that it has
sufficient right, title and interest in and to its web site and its
intellectual property to enter into these obligations, and that to its
knowledge, the license hereby granted to the other party does not and
will not infringe on any U.S. patent, United States copyright or other
United States proprietary right of a third party.
(c) Each of the parties hereto agrees that the nonbreaching party would
not have an adequate remedy at law in the event of the other party's
breach or threatened breach of its obligations under Sections 5(a) or
5(b) of this Exhibit B and that the nonbreaching party would suffer
irreparable injury and damage as a result of any such breach.
Accordingly, in the event either party breaches or threatens to breach
the obligations set forth in Sections 5(a) or 5(b) of this Exhibit B,
in addition to and not in lieu of any legal or other remedies a party
may pursue hereunder or under applicable law, each party hereto 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 therefore, prohibiting any such breach or threatened breach.
In any proceeding upon a motion for such equitable relief, a party'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
5(c) shall survive termination of the Agreement and the provision of
services set forth in this Exhibit B.
6. REPRESENTATION AND WARRANTY. Neither party shall knowingly insert into any
interface, other software, or other program provided by such party to the other
hereunder, or accessible on Internet Site or Fund Web Site, as the case may be,
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.
7. LIABILITY LIMITATIONS; INDEMNIFICATION.
(a) THE INTERNET. Each party acknowledges that the Internet is an
unsecured, unstable, unregulated, unorganized and unreliable network,
and that the ability of the other party to provide or perform services
or duties hereunder is dependent upon the Internet and equipment,
software, systems, data and services provided by various
telecommunications carriers, equipment manufacturers, firewall
providers, encryption system developers and other vendors and third
parties. Each party agrees that the other shall not be liable in any
respect for the functions or malfunctions of the Internet. Each party
agrees the other shall not be liable in any respect for the actions or
omissions of any third party wrongdoers (i.e., hackers not employed by
such party or its affiliates) or of any third parties involved in the
Internet Services and shall not be liable in any respect for the
selection of any such third party, unless such party selected the
third party in bad faith or in a grossly negligent manner.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS
SPECIFICALLY PROVIDED IN SECTIONS 2 AND OF THIS EXHIBIT B, ALL
SOFTWARE AND SYSTEMS DESCRIBED IN THIS EXHIBIT B ARE PROVIDED "AS-IS"
ON AN "AS-AVAILABLE" BASIS, AND PFPC HEREBY SPECIFICALLY DISCLAIMS ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
(c) CROSS-INDEMNITY. Each party hereto agrees to indemnify, defend and
hold harmless the other party and its affiliates (and their respective
officers, directors, agents and employees) from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fee and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and
blue sky laws) ("Liabilities") arising in connection with any claims
that any Internet Services or related work product infringes any
proprietary or other rights or any infringement claim against any of
such persons based on the party's intellectual property licensed to
the other party hereunder (provided the other party has used such
intellectual property in conformity with the product guidelines),
except to the extent such Liabilities result directly from the gross
negligence or knowing or willful misconduct of the other party or its
related indemnified parties. The provisions of this Section 7(c) shall
survive termination of the Agreement and the provision of services set
forth in this Exhibit B.
