Exhibit No. EX-99.h.2
FORM OF
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of August, 2008,
by and between Genworth Variable Insurance Trust, a Delaware statutory trust
(the "Trust"), and U.S. Bancorp Fund Services, LLC, a Wisconsin limited
liability company ("USBFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, USBFS is, among other things, in the business of administering
transfer and dividend disbursing agent functions for the benefit of its
customers; and
WHEREAS, the Trust desires to retain USBFS to provide transfer and dividend
disbursing agent services to each series of the Trust listed on Exhibit A hereto
(as amended from time to time) (each a "Fund" and collectively, the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
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 of USBFS as Transfer Agent
The Trust hereby appoints USBFS as transfer agent of the Trust on the
terms and conditions set forth in this Agreement, and USBFS hereby
accepts such appointment and agrees to perform the services and duties
set forth in this Agreement. The services and duties of USBFS shall be
confined to those matters expressly set forth herein, and no implied
duties are assumed by or may be asserted against USBFS hereunder.
2. Services and Duties of USBFS
USBFS shall provide the following transfer agent and dividend
disbursing agent services to the Fund:
A. Receive and process all orders for the purchase, exchange, and/or
redemption of shares in accordance with Rule 22c-1 under the 1940
Act.
B. Process purchase orders with prompt delivery, where appropriate,
of payment and supporting documentation to the Trust's custodian,
and issue the appropriate number of uncertificated shares with
such uncertificated shares being held in the appropriate
shareholder account.
C. Arrange for the issuance of shares obtained through transfers of
funds from Fund shareholders' accounts at financial institutions
and arrange for the exchange of shares for shares of other
eligible investment companies, when permitted by the Fund's
prospectus (the "Prospectus").
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trust's
custodian.
E. Pay monies upon receipt from the Trust's custodian, where
relevant, in accordance with the instructions of redeeming
shareholders.
F. Process transfers of shares in accordance with the shareholder's
instructions, after receipt of appropriate documentation from the
shareholder as specified in the Prospectus.
G. Process exchanges between Funds and/or classes of shares of Funds
both within the same family of funds and with a First American
Money Market Fund, if applicable.
H. Prepare and transmit payments for dividends and distributions
declared by the Trust with respect to the Fund, after deducting
any amount required to be withheld by any applicable laws, rules
and regulations and in accordance with shareholder instructions.
I. Serve as the Fund's agent in connection with accumulation, open
account or similar plans (e.g., periodic investment plans and
periodic withdrawal plans).
J. Make changes to shareholder records, including, but not limited
to, address changes in plans (e.g., systematic withdrawal,
automatic investment, dividend reinvestment).
K. Handle load and multi-class processing, including rights of
accumulation and purchases by letters of intent.
L. Record the issuance of shares of the Fund and maintain, pursuant
to Rule 17Ad-10(e) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), a record of the total
number of shares of the Fund which are authorized, issued and
outstanding.
M. Prepare shareholder meeting lists and, as necessary, mail,
receive and tabulate proxies.
N. Mail shareholder reports and Prospectuses to current
shareholders.
O. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all shareholders.
P. Provide shareholder account information upon request and prepare
and mail confirmations and statements of account to shareholders
for all purchases, redemptions and other confirmable transactions
as agreed upon with the Trust.
Q. Mail requests for shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate federal
authorities any taxes to be withheld on dividends and
distributions paid by the Trust, all as required by applicable
federal tax laws and regulations.
R. Provide a Blue Sky system that will enable the Trust to monitor
the total number of shares of the Fund sold in each state;
provided that the Trust, not USBFS, is responsible for ensuring
that shares are not sold in violation of any requirement under
the securities laws or regulations of any state.
S. Answer correspondence from shareholders, securities brokers and
others relating to USBFS' duties hereunder.
T. Reimburse the Fund each month for all material losses resulting
from "as of" processing errors for which USBFS is responsible in
accordance with the "as of" processing guidelines set forth on
Exhibit B hereto.
U. Perform its duties hereunder in compliance with all applicable
laws and regulations and provide any sub-certifications
reasonably requested by the Trust in connection with any
certification required of the Trust pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations
promulgated by the Securities and Exchange Commission thereunder,
provided the same shall not be deemed to change USBFS' standard
of care as set forth herein.
V. In order to assist the Trust in satisfying the requirements of
Rule 38a-1 under the 1940 Act (the "Rule"), USBFS will provide
the Trust's Chief Compliance Officer with reasonable access to
USBFS' personnel and records relating to the services provided by
it under this Agreement, and will provide quarterly compliance
reports and related certifications regarding any Material
Compliance Matter (as defined in the Rule) involving USBFS that
affect or could affect the Trust.
3. Additional Services to be Provided by USBFS
A. If the Trust so elects, by including the service it wishes to
receive in its fee schedule, USBFS shall provide the following
services that are further described and that may be subject to
additional terms and conditions specified in their respective
exhibits, as such may be amended from time to time:
Internet Access, Fan Web, Vision Mutual Fund Gateway (Exhibit C)
MARS SystemTM (Exhibit D)
The Trust hereby acknowledges that exhibits are an integral part
of this Agreement and, to the extent services included in Exhibit
C and/or Exhibit D are selected by the Trust, such services shall
also be subject to the terms and conditions of this Agreement. To
the extent the terms and conditions of this Agreement conflict
with the terms and conditions included in Exhibit C and/or
Exhibit D, as applicable, the exhibits shall control. The
provisions of Exhibit C and/or Exhibit D, as applicable, shall
continue in effect for as long as this Agreement remains in
effect, unless sooner terminated pursuant to Section 13 hereof.
The indemnity and defense provisions set forth in Section 8 of
the Agreement and in Exhibit D, if applicable, shall indefinitely
survive the termination and/or assignment of the Agreement.
B. USBFS shall allow the Trust access to various fund data, systems,
industry information and processes as the parties may agree to
from time to time, through Mutual Fund eXchange ("MFx"), subject
to the terms of this Agreement and the additional terms and
conditions contained in the on-line MFx access agreement to be
entered into upon accessing MFx for the first time. USBFS shall
enable the Trust to access MFx services by supplying the Trust
with necessary software, training, information and connectivity
support as mutually agreed upon, all of which shall constitute
confidential knowledge and information of USBFS and shall be used
by the Trust only as necessary to access MFx services pursuant to
this Agreement. The Trust shall provide for the security of all
codes and system access mechanisms relating to MFx provided to it
by USBFS and implement such security procedures and/or devices to
ensure the integrity of MFx. The Trust hereby understands that
USBFS will perform periodic maintenance to the MFx hardware and
software being accessed, which may cause temporary service
interruptions. USBFS shall notify the Trust of all planned
outages and, to the extent possible, will perform any necessary
maintenance during non-business hours.
The Trust hereby acknowledges that all programs, software,
manuals and other written information relating to MFx access
provided by USBFS pursuant to this Agreement shall remain the
exclusive property of USBFS at all times.
The Trust acknowledges that it is responsible for determining the
suitability and accuracy of the information obtained through its
access to MFx. 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 MFx. However, USBFS will assist the
Trust in verifying the accuracy of any of the information made
available to the Trust through MFx and covered by this Agreement.
In the event of termination of this Agreement, in addition to the
requirements set forth in Section 14 hereof, the Trust shall
immediately end its access to MFx 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.
4. Lost Shareholder Due Diligence Searches and Servicing
The Trust hereby acknowledges that USBFS has an arrangement with an
outside vendor to conduct lost shareholder searches required by Rule
17Ad-17 under the Securities Exchange Act of 1934, as amended. Costs
associated with such searches will be passed through to the Trust as
an out-of-pocket expense in accordance with the fee schedule set forth
in Exhibit E hereto. If a shareholder remains lost and the
shareholder's account unresolved after completion of the mandatory
Rule 17Ad-17 search, the Trust hereby authorizes vendor to enter, at
its discretion, into fee sharing arrangements with the lost
shareholder (or such lost shareholder's representative or executor) to
conduct a more in-depth search in order to locate the lost shareholder
before the shareholder's assets escheat to the applicable state. The
Trust hereby acknowledges that USBFS is not a party to these
arrangements and does not receive any revenue sharing or other fees
relating to these arrangements. Furthermore, the Trust hereby
acknowledges that vendor may receive up to 35% of the lost
shareholder's assets as compensation for its efforts in locating the
lost shareholder.
5. Anti-Money Laundering Program
USBFS acknowledges and represents that (1) it is a financial
institution subject to the law entitled Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism ("USA Patriot") Act of 2001 and the Bank Secrecy
Act (collectively the "AML Acts") and shall comply with the AML Acts
and applicable regulations adopted thereunder (collectively, the
"Applicable AML Laws") in all relevant respects; and (2) it is subject
to a rule implementing 31 U.S.C. 5318(h) (the anti-money laundering
program provision of the USA Patriot Act) and is regulated by a
federal functional regulator such as a federal banking regulator or
the SEC.
The Trust acknowledges that it has had an opportunity to review,
consider and comment upon the written procedures provided by USBFS
describing various tools used by USBFS which are designed to promote
the detection and reporting of potential money laundering activity by
monitoring certain aspects of shareholder activity as well as written
procedures for verifying a customer's identity (collectively, the
"Procedures"). The Trust hereby instructs and directs USBFS to
implement the Procedures on the Trust's behalf, as such may be amended
or revised from time to time. It is contemplated that these Procedures
will be amended from time to time by the parties as additional
regulations are adopted and/or regulatory guidance is provided
relating to the Trust's anti-money laundering responsibilities.
USBFS agrees to provide to the Trust:
A. Prompt written notification of any transaction or combination of
transactions that USBFS believes, based on the Procedures,
evidence money laundering activity in connection with the Trust
or any shareholder of the Fund;
B. Prompt written notification of any customer(s) that USBFS
reasonably believes, based upon the Procedures, to be engaged in
money laundering activity, provided that the Trust agrees not to
communicate this information to the customer;
C. Any reports received by USBFS from any government agency or
applicable industry self-regulatory organization pertaining to
USBFS' anti-money laundering monitoring on behalf of the Trust;
D. Prompt written notification of any action taken in response to
anti-money laundering violations as described in (A), (B) or (C)
above; and
E. Certified annual and quarterly reports of its monitoring and
customer identification activities on behalf of the Trust.
The Trust hereby directs, and USBFS acknowledges, that USBFS
shall (i) permit federal regulators access to such information
and records maintained by USBFS and relating to USBFS'
implementation of the Procedures, on behalf of the Trust, as they
may request, and (ii) permit such federal regulators to inspect
USBFS' implementation of the Procedures on behalf of the Trust.
6. Compensation
Other than for services, if any, to be provided pursuant to Section
3(A) of this Agreement, USBFS shall be compensated for providing the
services set forth in this Agreement in accordance with the fee
schedule set forth on Exhibit E hereto (as amended from time to time).
For services to be provided pursuant to Section 3(A) of this
Agreement, if applicable, USBFS shall be compensated in accordance
with the fee schedule set forth in the appendix to the exhibit that
relates to the services selected by the Trust. USBFS shall also be
compensated for such out-of-pocket expenses (e.g., telecommunication
charges, postage and delivery charges, and reproduction charges) as
are reasonably incurred by USBFS in performing its duties hereunder.
The Trust shall pay all such fees and reimbursable expenses within 30
calendar days following receipt of the billing notice, except for any
fee or expense subject to a good faith dispute. The Trust shall notify
USBFS in writing within 30 calendar days following receipt of each
invoice if the Trust is disputing any amounts in good faith. The Trust
shall pay such disputed amounts within 10 calendar days of the day on
which the parties agree to the amount to be paid. With the exception
of any fee or expense the Trust is disputing in good faith as set
forth above, unpaid invoices shall accrue a finance charge of 1 1/2%
per month after the due date. Notwithstanding anything to the
contrary, amounts owed by the Trust to USBFS shall only be paid out of
assets and property of the particular Fund involved.
7. Representations and Warranties
A. The Trust hereby represents and warrants to USBFS, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry
on its business as now conducted, to enter into this
Agreement and to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and
delivered by the Trust in accordance with all requisite
action and constitutes a valid and legally binding
obligation of the Trust, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both
state and federal, and has obtained all regulatory approvals
necessary to carry on its business as now conducted; there
is no statute, rule, regulation, order or judgment binding
on it and no provision of its charter, bylaws or any
contract binding it or affecting its property which would
prohibit its execution or performance of this Agreement; and
(4) A registration statement under the 1940 Act and the
Securities Act of 1933, as amended, will be made effective
prior to the effective date of this Agreement and will
remain effective during the term of this Agreement, and
appropriate state securities law filings will be made prior
to the effective date of this Agreement and will continue to
be made during the term of this Agreement as necessary to
enable the Trust to make a continuous public offering of its
shares.
B. USBFS hereby represents and warrants to the Trust, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry
on its business as now conducted, to enter into this
Agreement and to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and
delivered by USBFS in accordance with all requisite action
and constitutes a valid and legally binding obligation of
USBFS, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and
remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both
state and federal, and has obtained all regulatory approvals
necessary to carry on its business as now conducted; there
is no statute, rule, regulation, order or judgment binding
on it and no provision of its charter, bylaws or any
contract binding it or affecting its property which would
prohibit its execution or performance of this Agreement; and
(4) It is a registered transfer agent under the Exchange Act.
8. Standard of Care; Indemnification; Limitation of Liability
A. USBFS shall exercise reasonable care in the performance of its
duties under this Agreement. USBFS shall not be liable for any
error of judgment or mistake of law or for any loss suffered by
the Trust in connection with its duties under this Agreement,
including losses resulting from mechanical breakdowns or the
failure of communication or power supplies beyond USBFS' control,
except a loss arising out of or relating to USBFS' refusal or
failure to comply with the terms of this Agreement or from its
bad faith, negligence, or willful misconduct in the performance
of its duties under this Agreement. Notwithstanding any other
provision of this Agreement, if USBFS has exercised reasonable
care in the performance of its duties under this Agreement, the
Trust shall indemnify and hold harmless USBFS from and against
any and all claims, demands, losses, expenses, and liabilities of
any and every nature (including reasonable attorneys' fees) that
USBFS may sustain or incur or that may be asserted against USBFS
by any person arising out of any action taken or omitted to be
taken by it in performing the services hereunder (i) in
accordance with the foregoing standards, or (ii) in reliance upon
any written or oral instruction provided to USBFS by any duly
authorized officer of the Trust, as approved by the Board of
Trustees of the Trust (the "Board of Trustees"), except for any
and all claims, demands, losses, expenses, and liabilities
arising out of or relating to USBFS' refusal or failure to comply
with the terms of this Agreement or from its bad faith,
negligence or willful misconduct in the performance of its duties
under this Agreement. This indemnity shall be a continuing
obligation of the Trust, its successors and assigns,
notwithstanding the termination of this Agreement. As used in
this paragraph, the term "USBFS" shall include USBFS' directors,
officers and employees.
USBFS shall indemnify and hold the Trust harmless from and
against any and all claims, demands, losses, expenses, and
liabilities of any and every nature (including reasonable
attorneys' fees) that the Trust may sustain or incur or that may
be asserted against the Trust by any person arising out of any
action taken or omitted to be taken by USBFS as a result of
USBFS' refusal or failure to comply with the terms of this
Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement.
This indemnity shall be a continuing obligation of USBFS, its
successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term "Trust" shall
include the Trust's trustees, agents, assigns and successors in
addition to the directors officers and employees.
Without limiting the generality of the foregoing, USBFS agrees to
indemnify the Trust with respect to any and all of the following:
(1) failure of USBFS to observe or perform any duty or obligation
under any third party software license agreement or third party
service contract; (2) any claim by a third party of violation of
a duty of confidentiality or other similar duty in respect of
information in the possession of USBFS which information was
provided to the Trust; (3) any claims arising out of or related
to occurrences which USBFS is required to insure against pursuant
to this Agreement or applicable law; (4) any claim of unlawful
harassment or discrimination resulting from an action of USBFS or
its employees, agents or representatives; (5) any claim or action
arising out of or relating to any illness, other injury or death
of a person, or damage to property, attributable to the
negligence or misconduct of USBFS or its employees, agents or
representatives.
Neither party to this Agreement shall be liable to the other
party for consequential, special or punitive damages under any
provision of this Agreement.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, USBFS shall
take all reasonable steps to minimize service interruptions for
any period that such interruption continues. USBFS will make
every reasonable effort to restore any lost or damaged data and
correct any errors resulting from such a breakdown at the expense
of USBFS. USBFS agrees that it shall, at all times, have
reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data
processing equipment to the extent appropriate equipment is
available. Representatives of the Trust shall be entitled to
inspect USBFS' premises and operating capabilities at any time
during regular business hours of USBFS, upon reasonable notice to
USBFS. Moreover, USBFS shall provide the Trust, at such times as
the Trust may reasonably require, copies of reports rendered by
independent accountants on the internal controls and procedures
of USBFS relating to the services provided by USBFS under this
Agreement.
Notwithstanding the above, USBFS reserves the right to reprocess
and correct administrative errors at its own expense.
In order that the indemnification provisions contained in this
Section shall apply, it is understood that if in any case the
indemnitor may be asked to indemnify or hold the indemnitee
harmless, the indemnitor shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it
is further understood that the indemnitee will use all reasonable
care to notify the indemnitor promptly concerning any situation
that presents or appears likely to present the probability of a
claim for indemnification. The indemnitor shall have the option
to defend the indemnitee against any claim that may be the
subject of this indemnification. In the event that the indemnitor
so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim with
counsel reasonably satisfactory to indemnitee, and the indemnitee
shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this
Section. The indemnitee shall in no case confess any claim or
make any compromise in any case in which the indemnitor will be
asked to indemnify the indemnitee except with the indemnitor's
prior written consent.
B. The indemnity and defense provisions set forth in this Section 8,
and in Exhibit C, Exhibit D and Exhibit E, if applicable, shall
indefinitely survive the termination and/or assignment of this
Agreement.
C. If USBFS is acting in another capacity for the Trust pursuant to
a separate agreement, nothing herein shall be deemed to relieve
USBFS of any of its obligations in such other capacity.
9. Data Necessary to Perform Services
The Trust or its agent shall furnish to USBFS the data necessary to
perform the services described herein at such times and in such form
as mutually agreed upon.
10. Proprietary and Confidential Information
USBFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of
the Trust, all records and other information relative to the Trust and
prior, present, or potential shareholders of the Trust (and clients of
said shareholders), and not to use such records and information for
any purpose other than the performance of its responsibilities and
duties hereunder, except (i) after prior notification to and approval
in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where USBFS may be exposed to civil
or criminal contempt proceedings for failure to comply, (ii) when
requested to divulge such information by duly constituted authorities,
provided that USBFS will provide the Trust written notice of such
request to the extent such notice is permitted by applicable law and
rule, or (iii) when so requested by the Trust. Records and other
information which have become known to the public through no wrongful
act of USBFS or any of its employees, agents or representatives, and
information that was already in the possession of USBFS prior to
receipt thereof from the Trust or its agent, shall not be subject to
this paragraph.
Further, USBFS will adhere to the privacy policies adopted by the
Trust pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be
modified from time to time. In this regard, USBFS shall have in place
and maintain physical, electronic and procedural safeguards reasonably
designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of, records and
information relating to the Trust and its shareholders.
11. Records
USBFS shall keep records relating to the services to be performed
hereunder in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Trust, but not inconsistent with the
rules and regulations of appropriate government authorities, in
particular, Section 31 of the 1940 Act and the rules thereunder. USBFS
agrees that all such records prepared or maintained by USBFS relating
to the services to be performed by USBFS hereunder are the property of
the Trust and will be preserved, maintained, and made available in
accordance with such applicable sections and rules of the 1940 Act and
will be promptly surrendered to the Trust or its designee on and in
accordance with its request.
12. Compliance with Laws
The Trust has and retains primary responsibility for all compliance
matters relating to the Fund, including but not limited to compliance
with the 1940 Act, the Internal Revenue Code of 1986, the
Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and the
policies and limitations of the Fund relating to its portfolio
investments as set forth in its Prospectus and statement of additional
information. USBFS' services hereunder shall not relieve the Trust of
its responsibilities for assuring such compliance or the Board of
Trustees oversight responsibility with respect thereto.
13. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written
above and will continue in effect for a period of two (2) years.
Subsequent to the initial two-year term, this Agreement may be
terminated by either party upon giving 90 days prior written notice to
the other party or such shorter period as is mutually agreed upon by
the parties.
Notwithstanding the foregoing, this Agreement may be terminated by any
party upon the breach of the other party of any material term of this
Agreement if such breach is not cured within 15 days of notice of such
breach to the breaching party.
This Agreement may not be amended or modified in any manner except by
written agreement executed by USBFS and the Trust and authorized or
approved by the Board of Trustees. The provisions of this Section 13
shall also apply to Exhibit C, Exhibit D and Exhibit E.
14. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of USBFS' duties or responsibilities hereunder is designated by the
Trust by written notice to USBFS, USBFS will promptly, upon such
termination and at the expense of the Trust, transfer to such
successor all relevant books, records, correspondence, and other data
established or maintained by USBFS under this Agreement in a form
reasonably acceptable to the Trust (if such form differs from the form
in which USBFS has maintained the same, the Trust shall pay any
expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS' personnel in the
establishment of books, records, and other data by such successor. If
no such successor is designated, then such books, records and other
data shall be returned to the Trust. Notwithstanding the foregoing, in
the event that USBFS terminates this agreement by written notice to
the Trust, USBFS will promptly, upon such termination and at the
expense mutually agreed upon by the parties, transfer to the
successor(s) to the duties assigned to USBFS herein, all relevant
books, records, correspondence, and other data established or
maintained by USBFS under this Agreement in a form reasonably
acceptable to the Trust and will cooperate in the transfer of such
duties and responsibilities, including provision for assistance from
USBFS' personnel in the establishment of books, records, and other
data by such successor.
15. Early Termination
In the absence of any material breach of this Agreement, should the
Trust elect to terminate this Agreement prior to the end of the term,
the Trust agrees to pay the following fees:
a. all monthly fees through the life of the contract;
b. all fees associated with converting services to successor service
provider;
c. all fees associated with any record retention and/or tax
reporting obligations that may not be eliminated due to the
conversion to a successor service provider;
d. all out-of-pocket costs associated with a-c above.
16. Assignment
This Agreement shall extend to and be binding upon the parties hereto
and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the
written consent of USBFS, or by USBFS without the written consent of
the Trust, accompanied by the authorization or approval of the Trust's
Board of Trustees.
17. Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin, without regard to conflicts of law principles. 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 1940 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or
order of the Securities and Exchange Commission thereunder.
18. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower
either party to act as agent for the other party to this Agreement, or
to conduct business in the name, or for the account, of the other
party to this Agreement.
19. Services Not Exclusive
Nothing in this Agreement shall limit or restrict USBFS from providing
services to other parties that are similar or identical to some or all
of the services provided hereunder.
20. Invalidity
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.
21. Notices
Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given on
the date delivered personally or by courier service, or three days
after sent by registered or certified mail, postage prepaid, return
receipt requested, or on the date sent and confirmed received by
facsimile transmission to the other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
Genworth Variable Insurance Trust
c/o Genworth Financial Wealth Management, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
22. Multiple Originals
This Agreement may be executed on two or more counterparts, each of
which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same
instrument.
23. Insurance
USBFS, through its corporate affiliate, shall maintain a fidelity bond
covering larceny and embezzlement and an insurance policy with respect
to directors and officers errors and omissions coverage, in amounts
that are appropriate in light of its duties and responsibilities
hereunder. Upon the request of the Trust, USBFS shall provide evidence
that coverage is in place. USBFS shall notify the Trust should its
insurance coverage with respect to professional liability or errors
and omissions coverage be reduced or canceled. Such notification shall
include the date of cancellation or reduction and the reasons
therefore. USBFS shall notify the Trust promptly of any material
claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall
notify the Trust promptly should the total outstanding claims made by
USBFS under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
24. Trust Limitations
This Agreement is executed by the Trust with respect to each of the
Funds and the obligations hereunder are not binding on any of the
trustees, officers or shareholders of the Trust individually but are
binding only upon the Fund to which such obligations pertain and the
assets and property of such Fund. All obligations of the Trust under
this Agreement shall apply only on a Fund-by-Fund basis, and the
assets of one Fund shall not be liable for the obligations of another
Fund.
25. Entire Agreement
This Agreement, together with any exhibits, attachments, appendices or
schedules expressly referenced herein, sets forth the sole and
complete understanding of the parties with respect to the subject
matter hereof and supersedes all prior agreements relating thereto,
whether written or oral, between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer on one or more counterparts
as of the date first above written.
Genworth Variable Insurance Trust U.S. Bancorp Fund Services, LLC
By: ______________________________ By: ________________________________
Name:____________________________ Name:______________________________
Title: ____________________________ Title: ______________________________
Exhibit A
to the
Transfer Agent Servicing Agreement
Fund Names
Separate Series of Genworth Variable Insurance Trust
Name of Series Date Added
Genworth Calamos Growth Fund ___________, 0000
Xxxxxxxx Xxxxxxxx Mid Cap Value Fund ___________, 0000
Xxxxxxxx Xxxxx XX Venture Fund ___________, 2008
Genworth Xxxxx Xxxxx Large Cap Value Fund ___________, 2008
Genworth Xxxx Xxxxx Partners Aggressive Growth Fund ___________, 2008
Genworth PIMCO StocksPLUS Fund ___________, 2008
Genworth Xxxxxx International Capital Opportunities Fund ___________, 2008
Genworth Xxxxxxxxx International Value Fund ___________, 2008
Genworth Western Asset Management Core Plus Fixed Income Fund ___________, 2008
Exhibit B
to the
Transfer Agent Servicing Agreement
As Of Processing Policy
USBFS will reimburse each Fund for any Net Material Loss that may
exist on the Fund's books and for which USBFS is responsible, at the
end of each calendar month. "Net Material Loss" shall be defined as
any remaining loss, after netting losses against any gains, which
impacts a Fund's net asset value per share by more than1/2cent. Gains
and losses will be reflected on the Fund's daily share sheet, and the
Fund will be reimbursed for any net material loss on a monthly basis.
USBFS will reset the as of ledger each calendar month so that any
losses which do not exceed the materiality threshold of1/2cent will
not be carried forward to the next succeeding month. USBFS will notify
the advisor to the Fund on the daily share sheet of any losses for
which the advisor may be held accountable.
Exhibit C
to the
Transfer Agent Servicing Agreement
INTERNET ACCESS SERVICES
1. Services Covered
USBFS shall make the following electronic, interactive and processing
services ("Electronic Services") available to the Trust in accordance with
the terms of this Exhibit C:
A. Fan Web - Shareholder internet access to account information and
transaction capabilities. Internet service is connected directly to
the fund group's web site through a transparent hyperlink.
Shareholders can access, among other information, account information
and portfolio listings within a fund family, view transaction history,
and purchase additional shares through the Automated Clearing House
("ACH").
B. Vision Mutual Fund Gateway - Permits broker/dealers, financial
planners, and registered investment advisors to use a web-based system
to perform order and account inquiry, execute trades, print
applications, review prospectuses, and establish new accounts.
2. Duties and Responsibilities of USBFS
USBFS shall:
A. Make Electronic Services available 24 hours a day, 7 days a week,
subject to scheduled maintenance and events outside of USBFS'
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. Provide installation services, which shall include review and approval
of the Trust's network requirements, recommending method of
establishing (and, as applicable, cooperate with the Trust to
implement and maintain) a hypertext link between the Electronic
Services site and the Trust's web site(s) and testing the network
connectivity and performance.
C. Maintain and support the Electronic Services, which shall include
providing error corrections, minor enhancements and interim upgrades
to the Electronic Services that are made generally available to the
Electronic Services customers and providing help desk support to
provide assistance to the Trust's employees and agents with their use
of the Electronic Services. 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 the Electronic Services customers, as determined solely by
USBFS or (ii) maintenance of customized features.
D. Establish systems to guide, assist and permit End Users (as defined
below) who access the Electronic Services site from the Trust's web
site(s) to electronically perform inquiries and create and transmit
transaction requests to USBFS.
E. 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 Electronic Services.
F. 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 any of the Electronic
Services (the "End User") a unique personal identification number
("PIN") 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 provide
his/her PIN in order to access the Electronic Services.
G. Prepare and process new account applications received through the
Electronic Services from shareholders determined by the Trust to be
eligible for such services and in connection with such, the Trust
agrees as follows:
(1) to permit the establishment of shareholder bank account
information over the Internet in order to facilitate purchase
activity through ACH; and
(2) the Trust shall be responsible for any resulting gain/loss
liability associated with the ACH process.
H. Provide the End User with a transaction confirmation number for each
completed purchase, redemption, or exchange of the Trust's shares upon
completion of the transaction.
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 Electronic Services, to
protect the Internet web site that provides the Electronic Services
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. Monitor the telephone lines involved in providing the Electronic
Services and inform the Trust promptly of any malfunctions, problems,
errors or service interruptions with respect to the Electronic
Services of which USBFS becomes aware.
K. Exercise reasonable efforts to maintain all on-screen disclaimers and
copyright, trademark and service xxxx notifications, if any, provided
by the Trust to USBFS in writing from time to time, and all "point and
click" features of the Electronic Services relating to shareholder
acknowledgment and acceptance of such disclaimers and notifications.
L. 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 Electronic Services. Such
written procedures shall establish security standards for the
Electronic Services, 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 Electronic Services).
(3) PIN 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).
M. Provide the Trust with daily reports of transactions listing all
purchases or transfers made by each End User separately. USBFS shall
also furnish the Trust with monthly reports summarizing shareholder
inquiry and transaction activity without listing all transactions.
N. Annually engage a third party to audit its internal controls for the
Electronic Services and compliance with all guidelines for the
Electronic Services included herein and provide the Trust with a copy
of the auditor's report promptly.
3. Duties and Responsibilities of the Trust
The Trust assumes 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 Electronic Services in the manner prescribed by USBFS,
and for the Trust's failure to supply accurate information to USBFS.
Also, the Trust shall:
A. Revise and update the applicable prospectus(es) and other pertinent
materials, such as user agreements with End Users, to include the
appropriate consents, notices and disclosures for Electronic Services,
including disclaimers and information reasonably requested by USBFS.
B. Be responsible for designing, developing and maintaining one or more
web sites for the Trust through which End Users may access the
Electronic Services, including provision of software necessary for
access to the Internet, which must be acquired from a third-party
vendor. Such web sites shall have the functionality necessary to
facilitate, implement and maintain the hypertext links to the
Electronic Services and the various inquiry and transaction web pages.
The Trust shall provide USBFS with the name of the host of the Trust's
web site server and shall notify USBFS of any change to the Trust's
web site server host.
C. Provide USBFS with such information and/or access to the Trust's web
site(s) as is necessary for USBFS to provide the Electronic Services
to End Users.
D. Promptly notify USBFS of any problems or errors with the applicable
Electronic Services of which the Trust becomes aware or any changes in
policies or procedures of the Trust requiring changes to the
Electronic Services.
4. Additional Representation and Warranty
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, or accessible on the Electronic Services site or
Trust's web site(s), 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.
5. Proprietary Rights
A. Each party 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
hereunder. Any software, interfaces or other programs a party provides
to the other hereunder shall be used by such receiving party only in
accordance with the provisions of this Exhibit C. 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 Trust's web site(s) and the Electronic Services 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 period during which this Exhibit C is in effect. 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,
copyright or other proprietary right of a third party.
C. Each party 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 this Section of this
Exhibit C 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 this Section of this Exhibit C, in addition to and not in
lieu of any legal or other remedies a party may pursue hereunder or
under applicable law, each party 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, 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 relating to
equitable relief shall survive termination of the provision of
services set forth in this Exhibit C.
6. Compensation
USBFS shall be compensated for providing the Electronic Services in
accordance with the fee schedule set forth in Appendix 1 to this Exhibit C
(as amended from time to time).
7. Additional Indemnification; Limitation of Liability
A. Subject to Section 2(A), USBFS CANNOT AND DOES NOT GUARANTEE
AVAILABILITY OF THE ELECTRONIC SERVICES. Accordingly, USBFS' 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 Electronic Services to be provided by USBFS hereunder shall be
to use its best reasonable efforts to commence or resume the
Electronic Services as promptly as is reasonably possible.
B. USBFS shall, at its sole cost and expense, defend, indemnify, and hold
harmless the Trust and its agents, assigns, successors, trustees,
officers and employees from and against any and all claims, demands,
losses, expenses and liabilities of any and every nature (including
reasonable attorneys' fees) arising out of or relating to (a) any
infringement, or claim of infringement, of any United States patent,
trademark, copyright, trade secret, or other proprietary rights based
on the use or potential use of the Electronic Services and (b) the
provision of the Trust Files (as defined below) or Confidential
Information (as defined below) to a person other than a person to whom
such information may be properly disclosed hereunder.
C. If an injunction is issued against the Trust's use of the Electronic
Services by reason of infringement of a patent, copyright, trademark,
or other proprietary rights of a third party, USBFS shall, at its own
option and expense, either (i) procure for the Trust the right to
continue to use the Electronic Services on substantially the same
terms and conditions as specified hereunder, or (ii) after
notification to the Trust, replace or modify the Electronic Services
so that they become non-infringing, provided that, in the Trust's
judgment, such replacement or modification does not materially and
adversely affect the performance of the Electronic Services or
significantly lessen their utility to the Trust. If in the Trust's
judgment, such replacement or modification does materially adversely
affect the performance of the Electronic Services or significantly
lessen their utility to the Trust, the Trust may terminate all rights
and responsibilities under this Exhibit C immediately on written
notice to USBFS.
D. Because the ability of USBFS to deliver Electronic Services 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 Electronic
Services 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 Electronic
Services 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.
E. USBFS shall not be responsible for the accuracy of input material from
End Users nor the resultant output derived from inaccurate input. The
accuracy of input and output shall be judged as received at USBFS'
data center as determined by the records maintained by USBFS.
F. Notwithstanding anything to the contrary contained herein, USBFS shall
not be obligated to ensure or verify the accuracy or actual receipt,
or the transmission, of any data or information contained in any
transaction via the Electronic Services or the consummation of any
inquiry or transaction request not actually reviewed by USBFS.
8. File Security and Retention; Confidentiality
A. USBFS and its agents will provide reasonable security provisions to
ensure that unauthorized third parties do not have access to the
Trust's data bases, files, and other information provided by the Trust
to USBFS for use with the Electronic Services, the names of End Users
or End User transaction or account data (collectively, "Trust Files").
USBFS' security provisions with respect to the Electronic Services,
the Trust's web site(s) and the Trust Files will be no less protected
than USBFS' 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 take such actions as are necessary to protect the
intellectual property contained within the Trust's web site(s) or any
software, written materials, or pictorial materials describing or
creating the Trust's web site(s), including all interface designs or
specifications. USBFS will take such actions as are reasonably
necessary to protect all rights to the source code and interface of
the Trust's web site(s). In addition, 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' delivery of the
Electronic Services.
B. USBFS shall treat as confidential and not disclose or otherwise make
available any of the Trust's lists, information, trade secrets,
processes, proprietary data, information or documentation
(collectively, the "Confidential Information"), in any form, to any
person other than agents, employees or consultants of USBFS. USBFS
will instruct its agents, employees and consultants who have access to
the Confidential Information to keep such information confidential by
using the same care and discretion that USBFS uses with respect to its
own confidential property and trade secrets. Upon termination of the
rights and responsibilities described in this Exhibit C for any reason
and upon the Trust's request, USBFS shall return to the Trust, or
destroy and certify that it has destroyed, any and all copies of the
Confidential Information which are in its possession.
C. Notwithstanding the above, USBFS will not have an obligation of
confidentiality under this Section with regard to information that (1)
was known to it prior to disclosure hereunder, (2) is or becomes
publicly available other than as a result of a breach hereof, (3) is
disclosed to it by a third party not subject to a duty of
confidentiality, or (4) is required to be disclosed under law or by
order of court or governmental agency.
9. Warranties
EXCEPT AS OTHERWISE PROVIDED IN THIS EXHIBIT, THE ELECTRONIC SERVICES ARE
PROVIDED BY USBFS "AS IS" ON AN "AS-AVAILABLE" BASIS WITHOUT WARRANTY OF
ANY KIND, AND USBFS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE ELECTRONIC SERVICES INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. Duties in the Event of Termination
In the event of termination of the services provided pursuant to this
Exhibit C, (i) End Users will no longer be able to access the Electronic
Services and (ii) the Trust will return all codes, system access
mechanisms, programs, manuals and other written information provided to it
by USBFS in connection with the Electronic Services provided hereunder, and
shall destroy or erase all such information on any diskettes or other
storage medium.
Appendix 1 to Exhibit C
Transfer Agent Servicing Agreement
See Internet Access Service Fees on Exhibit E
Exhibit D
to the
Transfer Agent Servicing Agreement
DATA WAREHOUSE SERVICES
1. Certain Definitions
Whenever used in this Exhibit D, the following words and phrases shall have
the meanings set forth below unless the context otherwise requires:
A. "MARS SystemTM" means the system made available through Sales Focus
Solutions, a subsidiary of Phoenix American Incorporated, known as
"MARSTM" which allows for analysis of sales data from the transfer
agent or intermediaries which provides detail for omnibus account
trades, identifies or reports suspicious trading activity and manages
compliance related activities and reporting.
B. "Data Warehouse Serivces" means the services which are made available
to consenting end-users ("User," as defined below) whereby certain
Electronic Reports (as defined below) may be searched, viewed,
downloaded and printed.
C. "User(s)" means the person(s) to whom Electronic Reports are made
available.
D. "Electronic Reports" means an Electronic Report created with investor
transaction data housed by DST (the Transfer Agent's record keeping
system) and may include but not be limited to: 22c-2 Compliance
Reports, Omnibus Account Reconciliation, Sales Reporting, Platform
Reporting and Campaign Management and Tracking.
2. Services Covered
USBFS shall allow access to Data Warehouse Services by authorized Users on
behalf of the Trust in accordance with the terms of this Exhibit D.
3. Duties and Responsibilities of USBFS
USBFS will provide the following implementation support:
(1) Project Management Assistance
(2) Setup and Testing of System Interfaces
(3) Conversion of Historical Data from the Trust
(4) Assist with Sales Channel and Sales Territory Setup
(5) Assist with Clearing/Executing Firm Relationships
(6) Assist with Compliance Rule Setup
(7) Database Setup (User Defined Fields)
(8) Training (additional fee)
USBFS will provide the following support services after implementation:
(1) Assist with Project Management
(2) Dedicated Client Service team
(3) Weekly status calls (if needed)
(4) Setup and testing of requests from the Trust
(5) Duplicate Data Identification
(6) Assistance with System File Imports
(7) Custom Report Programming (at Programming rates)
(8) Enhanced support available at a designated fee (such as database
query reports, compliance report review and analysis, compliance
workflow assistance)
4. Duties and Responsibilities of the Trust
The Trust shall:
A. 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 Electronic Reports in the manner
prescribed by USBFS, and for the Trust's failure to supply accurate
information to USBFS.
B. Comply and instruct Users to comply with all the User enrollment
instructions and authorization procedures.
5. System Maintenance
The Trust understands that USBFS will have to perform periodic maintenance
to the hardware and software used to provide MARS and Data Warehouse
Services, which may cause temporary service interruptions. USBFS shall
notify the Trust of all planned outages of its own hardware and software
and, to the extent possible, will perform any necessary maintenance during
non-business hours.
6. Additional Representation and Warranty
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, or accessible on the Trust's web site(s), 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. Proprietary Rights
A. The Trust acknowledges and agrees that by virtue of subscribing to
MARS and Data Warehouse Services through USBFS, 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 provide MARS and Data Warehouse Services owned by Sales Focus
Solutions and licensed to USBFS. Any interfaces and software provided
to the Trust in order to provide connectivity to MARS and Data
Warehouse through USBFS shall be used by the Trust and Users only for
the period during which this Exhibit D is in effect and only in
accordance with the terms of this Exhibit D, and shall not be used by
the Trust to provide connectivity to or through any other system or
person without USBFS' 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 User acknowledgment and acceptance of
such disclaimers and notifications.
B. The MARS or DATA WAREHOUSE Services 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 Trust. The Trust retains all rights in such intellectual property
that may reside on the MARS or Data Warehouse Services site, not
including any intellectual property provided by or otherwise obtained
from USBFS. To the extent the intellectual property of the Trust is
cached to expedite communication, the Trust grants to USBFS 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 the
Trust is duplicated within the MARS or Data Warehouse Services site to
replicate the "look and feel," "trade dress" or other aspect of the
appearance or functionality of the Trust's web site(s), the Trust
grants to USBFS a limited, non-exclusive, non-transferable license to
such intellectual property for the period during which this Exhibit D
is in effect. This license is limited to the intellectual property
needed to replicate the appearance of the Trust's web site(s) and does
not extend to any other intellectual property owned by the Trust. The
Trust warrants that it has sufficient right, title and interest in and
to its web site(s) and its intellectual property to enter into these
obligations, and that to its knowledge, the license hereby granted to
USBFS does not and will not infringe on any U.S. patent, copyright or
other proprietary right of a third party.
C. Each party 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 this Section of this
Exhibit D 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 this Section of this Exhibit D, in addition to and not in
lieu of any legal or other remedies a party may pursue hereunder or
under applicable law, each party 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, 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 relating to
equitable relief shall survive termination of the provision of
services set forth in this Exhibit D.
8. Compensation
USBFS shall be compensated for providing MARS or Data Warehouse Services in
accordance with the fee schedule set forth in Appendix I to this Exhibit D
(as amended from time to time).
9. Additional Indemnification; Limitation of Liability
A. USBFS CANNOT AND DOES NOT GUARANTEE AVAILABILITY OF MARS AND DATA
WAREHOUSE SERVICES. Accordingly, USBFS' sole liability to the Trust or
any third party (including 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 MARS or Data Warehouse
Services to be provided by USBFS hereunder shall be to use its best
reasonable efforts to commence or resume MARS or Data Warehouse
Services as promptly as is reasonably possible.
B. USBFS shall, at its sole cost and expense, defend, indemnify, and hold
harmless the Trust and its trustees, officers and employees from and
against any and all claims, demands, losses, expenses, damages or
liabilities of any and every nature, including reasonable attorneys'
fees, arising out of or relating to (a) any infringement, or claim of
infringement, of any United States patent, trademark, copyright, trade
secret, or other proprietary rights based on the use or potential use
of MARS or Data Warehouse Services and (b) the provision of the Trust
Files (as defined below) or Confidential Information (as defined
below) to a person other than a person to whom such information may be
properly disclosed hereunder.
C. If an injunction is issued against the Trust's and Users' use of MARS
or Data Warehouse Services by reason of infringement of a patent,
copyright, trademark, or other proprietary rights of a third party,
USBFS shall, at its own option and expense, either (i) procure for the
Trust and Users the right to continue to use MARS or Data Warehouse
Services on substantially the same terms and conditions as specified
hereunder, or (ii) after notification to the Trust, replace or modify
MARS or Data Warehouse Services so that they become non-infringing,
provided that, in the Trust's judgment, such replacement or
modification does not materially and adversely affect the performance
of MARS or Data Warehouse Services or significantly lessen their
utility to the Trust and Users. If in the Trust's judgment, such
replacement or modification does materially adversely affect the
performance of MARS or DATA Warehouse Services or significantly lessen
their utility to the Trust and Users, the Trust may terminate all
rights and responsibilities under this Exhibit D immediately on
written notice to USBFS.
D. Because the ability of USBFS to deliver MARS and Data Warehouse
Services 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, including Sales
Focus Solutions, USBFS shall not be liable for delays or failures to
perform its obligations hereunder to the extent such delays or
failures are attributable to circumstances beyond its reasonable
control which interfere with the delivery of MARS and Data Warehouse
Services 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 with MARS and Data
Warehouse Services.
E. The Trust and Users are responsible for verifying the accuracy and
receipt of all data or information made available via MARS and Data
Warehouse Services. The Trust is responsible for advising Users of
their responsibilities to promptly notify the Trust's transfer agent
of any errors or inaccuracies relating to data or other information
made available via MARS and Data Warehouse Services with respect to
the Trust's shareholders.
F. USBFS shall not be responsible for the accuracy of input material from
Users and the Trust's record-keeping systems maintained by third
parties nor the resultant output derived from inaccurate input. The
accuracy of input and output shall be judged as received at USBFS'
data center as determined by the records maintained by USBFS.
10. File Security and Retention; Confidentiality
A. USBFS and its agents will provide reasonable security provisions to
ensure that unauthorized third parties do not have access to the
Trust's data bases, files, and other information provided by the Trust
to USBFS for use with MARS and Data Warehouse Services, (collectively,
"Trust Files"). USBFS' security provisions with respect to MARS and
Data Warehouse Services and the Trust Files will be no less protected
than USBFS' 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.
In addition, USBFS will not use, or permit the use of, names of Users
for the purpose of soliciting any business, product, or service
whatsoever except where the communication is necessary and appropriate
for USBFS' delivery of MARS and Data Warehouse Services.
B. USBFS shall treat as confidential and not disclose or otherwise make
available any of the Trust's lists, information, trade secrets,
processes, proprietary data, information or documentation
(collectively, the "Confidential Information"), in any form, to any
person other than agents, employees or consultants of USBFS. USBFS
will instruct its agents, employees and consultants who have access to
the Confidential Information to keep such information confidential by
using the same care and discretion that USBFS uses with respect to its
own confidential property and trade secrets. Upon termination of the
rights and responsibilities described in this Exhibit D for any reason
and upon the Trust's request, USBFS shall return to the Trust, or
destroy and certify that it has destroyed, any and all copies of the
Confidential Information which are in its possession.
C. Notwithstanding the above, USBFS will not have an obligation of
confidentiality under this Section with regard to information that (1)
was known to it prior to disclosure hereunder, (2) is or becomes
publicly available other than as a result of a breach hereof, (3) is
disclosed to it by a third party not subject to a duty of
confidentiality, or (4) is required to be disclosed under law or by
order of court or governmental agency.
11. Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS EXHIBIT, MARS AND DATA
WAREHOUSE SERVICES AND ALL EQUIPMENT, SOFTWARE AND SYSTEMS DESCRIBED IN
THIS EXHIBIT ARE PROVIDED "AS IS" ON AN "AS AVAILABLE" BASIS, AND USBFS
HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING MARS OR DATA WAREHOUSE SERVICES PROVIDED
HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE.
12. Duties in the Event of Termination
In the event of termination of the services provided pursuant to this
Exhibit D, (i) the Trust and Users will immediately end their access to
MARS and Data Warehouse Services and (ii) the Trust will return all codes,
system access mechanisms, programs, manuals, confidential or proprietary
information and other written information provided to it by USBFS in
connection with the Electronic Services provided hereunder, and shall
destroy or erase all such information on any diskettes or other storage
medium.
Appendix I
to Exhibit D of the
Transfer Agent Agreement
Fee Schedule for MARS
Exhibit E to the
Transfer Agent Servicing Agreement
Fee Schedule at ______, 2008
TO BE INSERTED
