TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of December 9, 2000 by and between PFPC
INC., a Massachusetts corporation ("PFPC"), and XXX XXXXXXX FUNDS, INC., a
Maryland corporation (the "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 (the "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:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
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(b) "1934 Act" means the Securities Exchange Act of 1934, as
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amended.
(c) "Authorized Person" means any officer of the Fund and any
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other person duly authorized by the Fund's Board of Directors
or 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) "CEA" means the Commodities Exchange Act, as amended.
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(e) "Oral Instructions" mean oral instructions received by PFPC
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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.
(f) "SEC" means the Securities and Exchange Commission.
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(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
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Act and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series
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or class of the Fund.
(i) "Written Instructions" mean (i) written instructions signed by
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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 by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
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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.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable,
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will provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors or Trustees,
approving the appointment of PFPC or its affiliates to provide
services to the Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC
is not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with
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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.
5. INSTRUCTIONS.
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(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
Directors or 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. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, PFPC shall incur no liability to
the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the
other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
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(a) Advice of the Fund. If PFPC is in doubt as to any action it
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should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
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question of law pertaining to any action it should or should
not take, PFPC may request advice from counsel
for the Fund or the Fund's investment adviser.
(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.
(d) Protection of PFPC. PFPC shall be protected in any action it
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takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions it receives from
the Fund or from counsel. 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 unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC's properly
taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
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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.
8. CONFIDENTIALITY. Each party shall keep confidential any information
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relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) 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; (b) 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; (c) 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 (d)
anything designated as confidential. Notwithstanding the foregoing,
information shall not be subject to such confidentiality obligations if
it: (a) is already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party
to a third party without restriction; (e) is required to be disclosed
by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (f) is relevant
to the defense of any claim or cause of action asserted against the
receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
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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 for the
expression of their opinion, as required by the Fund.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
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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 by PFPC in connection with the services provided by PFPC to
the Fund.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
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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, 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, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
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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. The
Fund acknowledges that PFPC may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this Agreement. PFPC agrees that
such float benefits
shall be used to offset banking service charges incurred in connection
with maintaining such accounts.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless
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PFPC and its affiliates 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, negligence or reckless disregard of, breach of
or failure to perform its duties and obligations 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,
negligence or reckless disregard of such duties and obligations.
14. RESPONSIBILITY OF PFPC.
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(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, or arising out of PFPC's failure to
exercise care and diligence in the performance of its duties
hereunder or to act in good faith in performing services
provided for under this Agreement.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC shall not be
liable for losses beyond its control, including without
limitation (subject to Section 11), delays or errors or loss
of data
occurring by reason of circumstances beyond PFPC's
control, provided that PFPC has acted in accordance with the
standard set forth in Section 14(a) above; and (ii) PFPC shall
not be under any duty or obligation to inquire into and shall
not be liable for the validity or invalidity or authority or
lack thereof of any Oral Instruction or Written Instruction,
notice or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) neither party to this Agreement 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 such party or its affiliates; and (ii)
PFPC's cumulative liability to the Fund for all losses,
claims, suits, controversies, breaches or damages for any
cause whatsoever (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 lesser of
Four Million Dollars and 00/100 Cents ($4,000,000.00) or the
fees received by PFPC for services provided hereunder during
the twelve (12) months immediately prior to the date of such
loss or damage. As used in Section 14(c)(i) above, the term
"consequential" losses or damages shall mean those losses or
damages that do not flow directly and immediately from the
act in question.
(d) No party may assert a cause of action against PFPC or any of
its affiliates that allegedly occurred more than twelve (12)
months after knowledge of the incident by the advisor, the
Fund's directors or officers.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. DESCRIPTION OF SERVICES.
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(a) Services Provided on an Ongoing Basis, If Applicable.
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(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with
shareholders to complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of
activity;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for on-line inquiry
response;
(ix) Mail duplicate confirmations to broker-dealers of
their clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to
the Fund;
(xi) Provide detailed data for underwriter/broker
confirmations;
(xii) Prepare periodic mailing of year-end tax and
statement information;
(xiii) Notify on a timely basis the investment adviser,
accounting agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Services Provided by PFPC Under Oral Instructions or Written
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Instructions.
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(i) Accept and post daily Share purchases and
redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when requested in
writing by the shareholder).
(c) Purchase of Shares. PFPC shall issue and credit an account of
an investor, in the manner described in the Fund's prospectus,
once it receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder
account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Fund's custodian.
(d) Redemption of Shares. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Directors
or Trustees. Shares shall be redeemed and payment therefor
shall be made in accordance with the Fund's prospectus, when
the recordholder tenders Shares in proper form and directs the
method of redemption. If Shares are received in proper form,
Shares shall be redeemed before the funds are provided to PFPC
from the Fund's custodian (the "Custodian"). If the
recordholder has not directed that redemption proceeds be
wired, when the Custodian provides PFPC with funds, the
redemption check shall be sent to and made payable to the
recordholder, unless:
(i) the surrendered certificate is drawn to the order of
an assignee or holder and transfer authorization is
signed by the recordholder; or
(ii) transfer authorizations are signed by the recordholder
when Shares are
held in book-entry form.
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.
(e) Dividends and Distributions. Upon receipt of a resolution of
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the Fund's Board of Directors or Trustees authorizing the
declaration and payment of dividends and distributions, 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 funds 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.
(f) Shareholder Account Services.
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(i) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders, checks
and applications.
(ii) PFPC may arrange, in accordance with the prospectus,
for a shareholder's:
- Exchange of Shares for shares of another fund with
which the Fund has exchange privileges;
- Automatic redemption from an account where that
shareholder participates in a automatic redemption
plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) Communications to Shareholders. Upon timely Written
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Instructions, PFPC shall mail all communications by the Fund
to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards
for the meetings of the Fund's shareholders.
(h) Records. PFPC shall maintain records of the accounts for
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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 perform
any calculations required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
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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.
(j) Shareholder Inspection of Stock Records. Upon a request from
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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.
(k) Withdrawal of Shares and Cancellation of Certificates. Upon
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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.
(l) Lost Shareholders. PFPC shall perform such services as are
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required in order to comply with Rules 17a-24 and 17Ad-17 of
the 1934 Act (the "Lost Shareholder Rules"), 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.
(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.
(m) Print Mail. In addition to performing the foregoing services,
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the Fund hereby engages PFPC as its print/mail service
provider with respect to those items identified in the Fee
Letter.
(n) Blue Sky Services. In connection with PFPC's performance of
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the foregoing services, the Fund shall (i) identify to PFPC in
writing those transactions and assets to be treated as exempt
from blue sky reporting for each state and (ii) verify the
establishment of transactions for each state on the PFPC
System prior to activation and thereafter monitor the daily
activity for each state. The responsibility of PFPC for the
Fund's blue sky state registration status is limited to the
initial establishment of transactions subject to blue sky
compliance by the Fund and the reporting of such transactions
to the Fund as provided above.
(o) Within a reasonable amount of time after the execution of this
Agreement the parties shall jointly define performance
standards with respect to the services performed by PFPC under
this Agreement. Once such performance standards are agreed to,
PFPC and the Fund shall amend the Agreement to incorporate
such performance standards herein.
16. DURATION AND TERMINATION.
(a) The term of this Agreement commences on the date first written
above and shall continue for a period of two (2) years (the
"Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
continue in full force and effect until terminated by either
party upon not less than one hundred eighty
(180) days prior written notice to the other party of its
intent to terminate the Agreement.
(c) In the event of termination all reasonable costs and expenses
associated with movement of records and materials and
conversion thereof will be borne by the Company. PFPC and
Company each will use their reasonable best efforts in
cooperating with the other party, and any person succeeding to
the obligations of either party hereunder, to facilitate the
termination of this Agreement and any transitional activities
necessitated thereby.
(d) If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), the
other party (the "Non-Defaulting Party") may give written
notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied 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. The parties
agree and acknowledge that the repeated failure by
PFPC to perform any Service (or Services of a substantially
similar nature) in accordance with the standard of care set
forth in Section 14(a) for an extended period of time shall be
presumed to be a "material breach" for purposes of this
paragraph. Termination of this Agreement by the Non-Defaulting
Party shall not constitute a waiver of any other rights or
remedies with respect to obligations of the parties prior to
such termination or rights of PFCP to be reimbursed for
out-of-pocket expenses. 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) The obligations of the parties set forth in Sections 7, 8, 13
and 14(c) shall survive termination of this Agreement.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 400 Bellevue
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Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
the Fund, at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX
00000, Attention: President 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 (3) 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.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
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waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. 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 sixty (60) days prior written notice of such
assignment or delegation and the net worth of the assignee is
substantially equivalent to the net worth of the assignor.
20. COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
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execute such further documents as are necessary to effectuate the
purposes hereof.
22. MISCELLANEOUS.
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(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
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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
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convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) Governing Law. This Agreement shall be deemed to be a contract
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made in the State of Delaware and governed by Delaware law,
without regard to principles of conflicts of law.
(e) 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.
(f) 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.
(g) 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.
(h) Facsimile Signatures. The facsimile signature of any party to
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this Agreement shall constitute the valid and binding
execution hereof by such party.
23. XXXXXXXXXX.XXX SERVICES. PFPC shall provide to the Fund the internet
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access services as set forth on Exhibit B attached hereto and made a
part hereof, as such Exhibit B may be amended from time to time.
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:
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Title:
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XXX XXXXXXX FUNDS, INC.
By:
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Title:
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XXX XXXXXXX FUNDS, INC.
RE: TRANSFER AGENCY SERVICES FEES
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Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to
be paid to PFPC Inc. ("PFPC") under the terms of a Transfer Agency Services
Agreement dated December 9, 2000 between Xxx Xxxxxxx Funds, Inc. ("you" or the
"Fund") and PFPC (the "Agreement") for services provided on behalf of each of
the Fund's investment portfolios ("Portfolio"). Pursuant to paragraph 12 of the
Agreement, and in consideration of the services to be provided to the Portfolio,
the Fund will pay PFPC certain fees and reimburse PFPC for its out-of-pocket
expenses incurred on its behalf, as follows:
1) ACCOUNT FEE:
Active Account: $18.00 per account per annum for each
account up to 100,000 accounts $17.25 per account
per annum from 100,001 to 200,000 total accounts
$16.25 per account per annum from 200,001 to
400,000 total accounts $15.00 per account per
annum for each account over 400,000 total
Inactive Account: $3.60 per account per annum
Fees shall be calculated and paid monthly based on one-twelfth (1/12th)
of the annual fee. An inactive account is defined as having a zero
balance with no dividend payable. Inactive accounts are purged annually
after year-end tax reporting.
2) TRANSACTION CHARGES:
New account opening $5.00 per account (paper)
$.40 per account (electronic)
Customer service calls $2.00 per call
Fulfillment calls $1.50 per minute
*XXX/Qualified plan processing $10.00 per Social Security Number,
per annum(1)
$2.50 per distribution(1)
$25.00 per transfer in or transfer
out(1)
(1) May be charged to the shareholder or paid by the Fund.
3) MINIMUM MONTHLY FEE:
The minimum monthly fee will be $2,500.00 per portfolio/class above the
Fund's existing eight portfolio/classes, exclusive of transaction
charges, PFPC Fund/SERV\Networking fees, XXXXXXXXxx.xxx(R) fees,
DAZL(R) fees, print mail fees, special handling fees, VRU fees,
optional services fees, out-of-pocket expenses and miscellaneous fees.
PFPC will waive this fee for the existing eight portfolio/classes
listed on Exhibit A of the Transfer Agency Services Agreement.
4) PFPC FUNDSERV/NETWORKING FEES:
NSCC Services includes any or all of the following FundSERV,
Networking, Commission Settlement, ACATS and Mutual Fund Profile.
PFPC One-time Setup fee: $2,000.00 per fund family
PFPC Transaction fees:
FundSERV $.40 per transaction
NSCC Networking: No charge
Commission Settlement: No charge
ACATS: No charge
Mutual Fund Profile Service: $10.00 per month per fund/class with
a $100.00 maximum per month
Note: NSCC will deduct its direct monthly fee on the 15th of each month
(out-of-pocket expense for settlements and wire charges) from PFPC's
cash settlement that day. PFPC will include these charges as an
out-of-pocket expense on its next invoice.
5) XXXXXXXXXX.XXX(R) FEES
Hardware Set-up Installation Fee: $30,000.00 (one time fee)
Inquiry Fee: $0.10 per inquiry
$1,200.00 minimum monthly fee
Transaction Fee: $0.50 per transaction
$120.00 minimum monthly fee
Customization/Programming: $150.00 per hour
Annual Maintenance Fee:
100,001 to 500,000 shareholder accounts $21,000.00
500,000 to 1,000,000 shareholder accounts $28,000.00
More than 1,000,001 shareholder accounts $35,000.00
NOTE: The annual maintenance fee is counted at implementation and then
at each subsequent anniversary date of implementation. The annual fee
will be adjusted accordingly.
6) VOICE RESPONSE UNIT FEES:
Set-up fee: $10,000.00
Monthly maintenance fee: $500.00
$0.23 per minute
$0.10 per call
Customization Programming $150.00 per hour
7) DAZL(R) FEES
One-time Hardware Set-up Installation Fee: $5,000.00
(includes management company level coding and
report programming)
Monthly Maintenance Fee: $1,000.00
(includes client and broker dealer access to
DAZL(R)Support Group)
DAZL(R) Base Transmission Fee/Record
Price records $0.015
Other records $0.030
(security, distribution, account
master, transaction, position)
DAZL(R)Direct/Interactive/Trust/401K/ICI/Xxx.Xx. Level Fee/Record:
Price records $0.01
Other records $0.01
(security, distribution, account
master, transaction, position)
Enhancement Fee: $150.00
8) PRINT MAIL FEES:
A. STANDARD SERVICES:
Implementation Fee: $ 5000.00
Work Order: $15.00 per work order
Daily Work (Confirms):
Hand: $71.00/K with $75.00 minimum
(includes 1 insert)
$0.07/each additional insert
Machine: $42.00/K with $50.00 minimum
(includes 1 insert)
$0.01/each additional insert
Daily Checks(2):
Hand: $91.00/K with $100.00 minimum daily
(includes 1 insert)
$0.08/each additional insert
Machine: $52.00/K with $75.00 minimum
(includes 1 insert)
$0.01/each additional insert
(2) There is a $3.00 charge for each 3606 Form sent.
Statements:
Hand: $78.00/K with $75.00 minimum
(includes 1 insert)
$0.08/each additional insert
$125.00/K for intelligent inserting
Machine: $52.00/K with $75.00 minimum
(includes 1 insert)
$0.01 each additional insert
$58.00/K for intelligent inserting
Periodic Checks:
Hand: $91.00/K with $100.00 minimum
(includes 1 insert)
$0.08/each additional insert
Machine: $52.00/K with $100.00 minimum
(includes 1 insert)
$0.01/each additional insert
12B1/Dealer Commission Checks/Statements:
$0.78/each envelope with $100.00 minimum
Spac Reports/Group Statements: $78.00/K with $75.00 minimum
Listbills: $0.78 per envelope with $75.00 minimum
Printing Charges: $0.08 per confirm/statement/image
$0.10 per check
Folding (Machine): $18.00/K
Offline Metering: $10.00/K
Folding (Hand): $.12 each
Presort Charge: $0.035 per piece
Courier Charge: $15.00 for each on call courier
trip/or actual cost for on demand
Overnight Charge: $3.50 per package service charge plus
FedEx/Airborne charge
Inventory Storage: $25.00 for each inventory location as
of the 15th of the month
Inventory Receipt: $20.00 for each SKU/Shipment
Hourly work; special projects, opening envelopes, etc.: $24.00 per hour
Special Pulls: $2.50 per account pull
Boxes/Envelopes:
Shipping boxes $0.85 each
Oversized Envelopes $0.45 each
Forms Development/Programming Fee: $150.00 per hour
Systems Testing: $110.00 per hour
Cutting Charges: $10.00/K
B. SPECIAL MAILINGS
This pricing is based on appropriate notification (standard of 15-day
notification) and scheduling for special mailings. Scheduling
requirements include having collateral arrive at
agreed upon time in advance of deadlines. Mailings which arise with
shorter time frames and turns will be billed at a premium based on turn
around requirements.
Work Order: $15.00 per work order
Tape Work: $135.00 to create an admark tape
$10.00/K to zip + 4 data enhance with $125.00 minimum
$80.00/hour for any data manipulation
$6.00/K combo charge
Admark and Machine Insert:
#10, #11, 6 x 9 $62/K to admark envelope and machine
insert 1 piece, with $125 minimum
$2.50/K for each additional insert
$38/K to admark only with $75.00 minimum
$25.00/X xxxx sort
9 x 12 $100/K to admark envelope and machine
insert 1 piece, with $125 minimum
$5.00/K for each additional insert
$38/K to admark only with
$75.00 minimum $0.08 for each hand insert
Admark and Hand Insert:
#10, #11, 6 x 9 $0.08 for each hand insert
$25.00/X xxxx sort
9 x 12 $0.09 for each hand insert
$25.00/X xxxx sort
Pressure/Sensitive Labels: $0.32 each to create, affix and hand insert
1 piece, with a $75.00 minimum
$0.08 for each hand insert
$0.10 to affix labels only
$0.10 to create labels only
Legal Drop: $150.00/compliant legal drop per job and
processing fees
Create Mailing List: $0.40 per entry with a $75.00 minimum
Mail Prep Fee: $0.035 per piece
NOTE: Optional services expenses are billed as they are incurred.
9) BLUE SKY FEES: $120 per permit
10) SHAREHOLDER EXPENSES
Shareholder expenses include, but are not limited to: XXX/Xxxxx
processing, exchange fees between portfolios, requests for account
transcripts, returned checks, lost certificate bonding, overnight
delivery as requested by the shareholder, and wire fee for disbursement
if requested by the shareholder. Shareholder expenses are billed as
they are
incurred.
11) MISCELLANEOUS CHARGES. The Fund shall be charged for the following
products and services as applicable, ad hoc reports, ad hoc SQL time,
banking services, COLD storage, digital recording, microfiche/microfilm
production, magnetic media tapes and freight, and pre-printed stock,
including business forms, certificates, envelopes, checks and
stationary.
11) OUT-OF-POCKET EXPENSES include, but are not limited to, postage (direct
pass through to the Fund), telephone and telecommunication costs
(including all lease, maintenance and line costs), proxy solicitations
(including mailings and tabulations), shipping, certified and overnight
mail (including related insurance), terminals, communication lines,
printers and other equipment and any expenses incurred in connection
with such terminals and lines, duplicating services, distribution and
redemption check issuance, courier services, Federal Reserve charges
for check clearance, overtime (as approved by the Fund), temporary
staff (as approved by the Fund), travel and entertainment (as approved
by the Fund), record retention (including retrieval and destruction
costs, exit fees charged by third party record keeping vendors), third
party audit reviews, insurance.
NOTE: Out-of-pocket expenses are billed as they are incurred.
12) MISCELLANEOUS
Any fee, out-of-pocket expenses or shareholder expenses not paid within
30 days of the date of the original invoice will be charged a late
payment fee of 1% per month until payment of the fees are received by
PFPC.
The fee for the period from the date hereof until the end of the year
shall be prorated according to the proportion which such period bears
to the full annual period.
If the foregoing accurately sets forth our agreement and you intend to
be legally bound thereby, please execute a copy of this letter and return it to
us.
Very truly yours,
PFPC INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
Agreed and Accepted:
XXX XXXXXXX FUNDS, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT A
---------
THIS EXHIBIT A dated as of December 9, 2000, is Exhibit A to the Transfer Agency
Services Agreement dated December 9, 2000 (the "Agreement") between Xxx Xxxxxxx
Funds, Inc. (the "Fund") and PFPC Inc. ("PFPC"). This Exhibit A shall supersede
all previous forms of Exhibit A to the Agreement as of the date hereof.
PORTFOLIOS
----------
XXX XXXXXXX MICRO-CAP GROWTH FUND
XXX XXXXXXX MID-CAP GROWTH FUND
XXX XXXXXXX EMERGING GROWTH FUND
XXX XXXXXXX POST-VENTURE FUND
XXX XXXXXXX TECHNOLOGY FUND
NORTHERN U.S. GOVERNMENT MONEY MARKET FUND
CAPITAL APPRECIATION FUND
GROWTH FUND
EXHIBIT B
---------
XXXXXXXXxx.xxx(R) SERVICES
1. DEFINITIONS. Any term not herein defined shall have the meaning given
-----------
such term in the Agreement. The following definitions shall apply to
this Exhibit B:
(a) "End-User" shall mean any Shareholder that accesses the PFPC System
via XXXXXXXXxx.xxx(R).
(b) "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 XXXXXXXXxx.xxx(R).
(c) "XXXXXXXXxx.xxx(R) 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 which have been certified by
ICSA or a nationally-recognized audit firm (including but not limited to
firewalls and encryption), whereby Inquires may be performed and Transactions
may be requested by accessing XXXXXXXXxx.xxx(R) via hypertext link from the
Fund Web Site.
(d) "Inquiry" shall mean any access to the PFPC System via
XXXXXXXXxx.xxx(R) initiated by an End-User which is not a Transaction.
(e) "Internet" shall mean the communications network comprised of
multiple communications networks linking education, government, industrial and
private computer networks.
(f) "XXXXXXXXxx.xxx(R)" 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 Funds Web
Site through the World Wide Web, where the Inquiry and Transaction data fields
and related screens provided by PFPC may be viewed.
(g) "Shareholder" means the record owner or authorized agent of the
record owner of shares of the Fund.
(h) "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 and
---------------------
the Agreement, 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 XXXXXXXXxx.xxx(R) to permit persons to be able to view information
about the Fund and to permit End-Users with appropriate identification and
access codes to perform Inquiries and initiate Transactions;
(b) address and mail, at the Fund's expense, notification and
promotional mailings and other communications provided by the Fund to
Shareholders regarding the availability of XXXXXXXXxx.xxx(R) Services;
(c) upon availability of such service, prepare and process new account
applications received through XXXXXXXXxx.xxx(R) from Shareholders determined by
the Fund to be eligible for such services;
(d) process the set up of personal identification numbers ("PIN"), as
described in the XXXXXXXXxx.xxx(R) Product Guide provided to the Fund, which
shall include verification of initial identification numbers issued, reset and
activate personalized PIN's and reissue new PIN's in connection with lost PIN's;
(e) 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 XXXXXXXXxx.xxx(R) and the Fund Web Site and testing the
network connectivity and performance;
(f) establish systems to guide, assist and permit End-Users who access
XXXXXXXXxx.xxx(R) from the Fund Web Site to electronically perform Inquires and
create and transmit Transaction requests to PFPC;
(f) deliver to the Fund one (1) copy of the PFPC XXXXXXXXxx.xxx(R)
Product Guide, as well as all updates thereto on a timely basis;
(g) deliver a monthly billing report to the Fund, which shall include
a report of Inquiries and Transactions;
(h) 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 PFPC Web Site;
(i) exercise reasonable efforts to maintain all on-screen disclaimers
and copyright, trademark and service xxxx notifications, if any, provided by the
Fund to PFPC in writing from time to time, and all "point and click" features of
the PFPC Web Site relating to Shareholder acknowledgment and acceptance of such
disclaimers and notifications;
(j) provide periodic site visitation (hit reports) and other
information regarding End-User activity under this Agreement as agreed by PFPC
and the Fund from time to time;
(k) monitor the telephone lines involved in providing XXXXXXXXxx.xxx(R)
Services and inform the Fund promptly of any malfunctions or service
interruptions;
(l) PFPC shall periodically scan its Internet interfaces and
XXXXXXXXxx.xxx(R) for viruses and promptly remove any such viruses located
thereon;
(m) maintenance and support of XXXXXXXXxx.xxx(R), which includes
providing error corrections, minor enhancements and interim upgrades to
XXXXXXXXxx.xxx(R) which are made generally available to XXXXXXXXxx.xxx(R)
customers and providing help desk support to provide assistance to Fund
employees with the Fund's use of XXXXXXXXxx.xxx(R);
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 XXXXXXXXxx.xxx(R) clients, as determined solely by PFPC; or
(ii) maintenance of customized features; and
(n) the Fund recognizes and acknowledges that (i) a logon I.D. and PIN
are required by End-Users to access PFPC's XXXXXXXXxx.xxx(R); (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; software must be acquired from a third-party vendor.
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 XXXXXXXXxx.xxx(R);
(b) promptly provide PFPC written notice of changes in Fund policies
or procedures requiring changes to the XXXXXXXXxx.xxx(R) Services;
(c) work with PFPC to develop Internet marketing materials for
End-Users and forward a copy of appropriate marketing materials to PFPC;
(d) 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 XXXXXXXXxx.xxx(R) 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; and
(f) design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to XXXXXXXXxx.xxx(R) and
the various Inquiry and Transaction web pages and otherwise make the Fund Web
Site available to End-Users.
4. STANDARDS OF CARE FOR INTERNET SERVICES. Notwithstanding anything to
---------------------------------------
the contrary contained in the Agreement, although PFPC shall comply with the
standard of care specified in the Agreement and above in providing
XXXXXXXXxx.xxx(R) Services, 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 XXXXXXXXxx.xxx(R) 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
XXXXXXXXxx.xxx(R) Services.
5. ADDITIONAL FEES FOR XXXXXXXXxx.xxx(R) SERVICES. As consideration for
----------------------------------------------
the performance by PFPC of XXXXXXXXxx.xxx(R) Services, the Fund will pay the
fees set forth in a separate fee letter as agreed between the parties from time
to time.
6. 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 hereunder shall be used by such receiving party only
during the term of the Agreement 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 XXXXXXXXxx.xxx(R) 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 the
Agreement. 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
after reasonable inquiry, the license hereby granted to the other party does not
and will not infringe on any U.S. patent, U.S. copyright or other U.S.
proprietary right of a third party.
7. 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 XXXXXXXXxx.xxx(R) 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.
8. 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 breached the standard of care specified herein with respect to that
selection.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS
------------------------------------------------
SPECIFICALLY PROVIDED IN SECTIONS 2 AND 4, ALL SOFTWARE AND SYSTEMS DESCRIBED IN
THIS EXHIBIT B ARE PROVIDED "AS-IS" ON AN "AS-AVAILABLE" BASIS.
9. MISCELLANEOUS.
-------------
(a) Independent Contractor. The parties to this Agreement are and shall
----------------------
remain independent contractors, and nothing herein shall be construed to create
a partnership or joint venture between them and none of them shall have the
power or authority to bind or obligate the other in any manner not expressly set
forth herein. Any contributions to XXXXXXXXxx.xxx(R) by
the Fund and any contributions to the Fund Web Site by PFPC shall be works for
hire pursuant to Section 101 of the Copyright Act.
(b) Conflict with Agreement. In the event of a conflict between
-----------------------
specific terms of this Exhibit B and the Agreement, this Exhibit B shall control
as to XXXXXXXXxx.xxx(R) Services.
