RULE 22C-2 SERVICES AGREEMENT
AGREEMENT effective as of April 15, 2007 (the "Effective Date") between
YieldQuest Funds Trust (the "Trust"), and BISYS Fund Services Ohio, Inc.
("BISYS").
WHEREAS, the Trust is a registered investment management company and is
subject to the requirements of Rule 22c-2 (the "Rule") under the Investment
Trust Act of 1940 (the "1940 Act"); and
WHEREAS, BISYS performs certain services for the Trust and its series (the
"Funds") pursuant to a Master Services Agreement between BISYS and the Trust
(the "Primary Agreement"); and
WHEREAS, the Trust desires that BISYS assist the Trust in complying with
the Rule, and BISYS is willing to provide such assistance on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in exchange for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Trust and BISYS
hereby agree as follows:
1. Services.
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BISYS will provide to the Trust the services (the "Services") set forth on
Schedule 1 to this Agreement. BISYS may use one or more third parties to perform
some or all of its obligations under this Agreement. BISYS shall be fully
responsible for the acts of such third parties and shall not be relieved of any
of its responsibilities under this Agreement by virtue of the use of such third
parties; provided, however, that BISYS shall have no responsibility or liability
for any third party software or services utilized in connection with any trade
monitoring services as described in Schedule 3 to this Agreement. The provision
of the Services is subject to the additional terms and conditions set forth on
Schedule 3 to this Agreement. BISYS shall have no obligation to commence the
Services earlier than the applicable dates required by the Rule (as it may be
amended).
2. Fees and Expenses.
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In consideration of BISYS' provision of the Services, the Trust will pay to
BISYS the fees set forth on Schedule 2 to this Agreement. In addition, the Trust
will reimburse BISYS for all of its out-of-pocket expenses incurred in providing
the Services, including without limitation mailing and telecommunications
expenses and fees imposed by third parties such as DTCC and the NSCC. Such fees
and expense reimbursements will be in addition to all fees and expenses payable
to BISYS under the Primary Agreement. All rights of compensation under this
Agreement for services performed and for expense reimbursements will survive the
termination of this Agreement.
3. Information and Documents.
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(a) Trust Information and Documents. In order for BISYS to perform the
Services, the Trust will provide to BISYS promptly after the Effective Date the
information and documents listed below to the extent such information and
documents have not previously been provided to BISYS. During the term of this
Agreement, the Trust will also promptly provide to BISYS all updates to such
information and documents, and such other information and documents as may be
necessary or appropriate for BISYS to provide the Services:
(i) a copy of the resolutions of the Trust's Board of Trustees (the
"Board") evidencing: (a) approval of this Agreement and authorization of a
specified officer of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct BISYS under this
Agreement; and (b) authorization of BISYS to act as transaction compliance agent
for the Trust;
(ii) a certified list of all officers of the Trust, with the Trust's
AML Compliance Officer and Chief Compliance Officer included, and any other
persons (who may be associated with the Trust or its investment advisor) that
are authorized to instruct BISYS in all matters with respect to the Services,
together with specimen signatures of such officers and such other persons;
(iii) two copies (in hard copy and electronic (soft copy) reproduceable
forms) of each of the Trust's prospectus and statement of additional
information, and all other forms of documents commonly used by the Trust or its
distributor with regard to their relationships and transactions with
shareholders of the Funds (the "Trust Documents");
(iv) two copies (in hard copy and electronic (soft copy) reproduceable
forms) of the Trust's and each Fund's written market timing policies, including
any related policies and procedures and rules (the "Trust Policies");
(v) a copy of all agreements between the Trust's financial
intermediaries, dealers and selling group members (collectively, as such group
of financial intermediaries, dealers and selling group members may be amended,
from time to time, upon agreement of BISYS, "Intermediaries") and the Trust
and/or the Trust's distributor, or in the alternative, a listing of all such
agreements and any provisions affecting the Services;
(vi) a list of all accounts exempted from the Trust Policies; and
(vii) such other information and documents as may be set forth on a
Schedule to this Agreement or as may be reasonably requested by BISYS from time
to time.
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(b) BISYS Information and Documents. BISYS will provide to the Trust
promptly after the Trust's request the information and documents listed below.
During the term of this Agreement, BISYS will also promptly provide to the Trust
all updates to such information and documents, and such other information and
documents as may be necessary or appropriate for the Trust to evaluate BISYS'
provision of the Services:
(i) approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this Agreement;
(ii) authorization of BISYS to act as transaction compliance agent for
the Trust; and
(iii) the current version of BISYS' written compliance procedures with
respect to its provision of transaction compliance services.
4. Term and Termination.
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(a) This Agreement will continue in effect for one year from the Effective
Date, unless earlier terminated pursuant to the terms of this Agreement.
Thereafter, this Agreement shall continue unless otherwise terminated as
provided in this Agreement. This Agreement may be terminated on the one-year
anniversary of the Effective Date, or any time thereafter, by either party upon
at least 90 days advance written notice to the other. In addition, this
Agreement may be terminated: (i) by mutual agreement of the parties, (ii) for
"cause," as defined in the Primary Agreement; or (iii) by BISYS immediately in
the event that the Trust breaches any provision of Schedule 3 to this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, all of the
obligations of BISYS under this Agreement will terminate automatically upon the
effective date of termination of the Primary Agreement.
5. Notices.
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Any notice provided under this Agreement will be sent in accordance with
the Primary Agreement.
6. Relationship to Primary Agreement.
---------------------------------
Except as expressly provided in this Agreement, the terms of the Primary
Agreement will apply to the Services and the general provisions thereof will be
used on a residual basis to govern any issues arising under this Agreement that
are not addressed by the express terms of this Agreement. Except as expressly
set forth in this Agreement, the provisions of the Primary Agreement remain
unchanged and in full force and effect.
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7. Miscellaneous.
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(a) The provisions set forth in this Agreement supersede all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including any conflicting provisions of the Primary Agreement.
(b) No amendment or modification to this Agreement will be valid unless
made in writing and executed by both parties hereto.
(c) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(d) This Agreement may be executed in counterparts, each of which will be
an original but all of which, taken together, will constitute one and the same
agreement.
(e) The provisions of Sections 6 and 7 of this Agreement and the additional
terms and conditions set forth in Schedule 3 to this Agreement shall survive the
termination or expiration of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
YIELDQUEST FUNDS TRUST
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Chairman and President
Date: 4/7/07
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
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SCHEDULE 1
SERVICES
BISYS will provide the following services to the Trust:
1. Program Launch Services
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o Perform business analysis, including review of: (a) Fund-specific market
timing and redemption fee policies of the Funds, (b) Fund Intermediaries
and trading practices, and (c) NSCC / DTCC membership status
o Organize Fund-specific rules for the Funds and apply to a Rule analytic
database
o Upload or input setup data
o Setup Rule system management reports
o Establish and confirm Intermediary data delivery protocols, including
Intermediary contact information, trade detail request process and flows,
exception process procedures and trade detail delivery protocols
o Perform Rule system user acceptance testing
o Verify and test setup of specific system rules for the Funds
o Perform pass-through tests as necessary
o Perform production testing of Rule system functionality
2. Transaction Compliance Services
-------------------------------
A. System protocols: Establish system protocols with Intermediaries to
transmit transaction data (which transaction data is intended to meet the
requirements of the Rule) to BISYS or its designee on behalf of the Trust.
This data may include Tax Identification Numbers of shareholders that
purchased, redeemed, transferred, or exchanged shares held through an
account with the Intermediary, and the amounts and dates of such
shareholder purchases, redemptions, transfers, and exchanges.
B. Trade monitoring services: Through using a proprietary system (including
such other proprietary systems as may be utilized by BISYS from time to
time, for purposes of this Schedule 1 only, the "Licensed System") licensed
by BISYS from SunGard Institutional Brokerage, Inc. (including such other
providers of a proprietary system utilized by BISYS from time to time,
"STN") pursuant to an agreement (including such other agreements as BISYS
may enter into for a proprietary system utilized by BISYS from time to
time, the "STN Agreement") between BISYS and STN, monitor the Funds'
shareholders' trading activity periodically for adherence with the Funds'
market timing policy and provide monthly reporting to the Trust, the Board
and the Trust's Chief Compliance Officer ("CCO") with respect to frequent
trading activity, as defined in the Funds' policy. The reporting to be
provided by BISYS will include trade exception volumes (direct and
Intermediary), correspondence volumes (direct and Intermediary), redemption
fees applied (if
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applicable), redemption fees waived (if applicable), and each Fund's
waivers of trade exceptions.
In order for BISYS to perform such trade monitoring services, the Trust
will provide to BISYS promptly after the Effective Date: (i) authorization
for BISYS to use the Licensed System to provide trade monitoring services
(although such authorization shall not preclude BISYS from using an
alternate service provider in BISYS' sole discretion), (ii) authorization
for BISYS or its designee to receive transaction information from
Intermediaries for any underlying accounts of omnibus accounts held on each
Fund's shareholder record keeping system, (iii) a list of all known omnibus
accounts maintained with respect to the Funds, (iv) authorization for BISYS
to provide information and data about the Trust (including, without
limitation, the Trust Documents and the Trust Policies), the Funds and
their shareholders to BISYS' service providers, including the provider of
the Licensed System, in connection with the provision of Services hereunder
and as required in connection with the use of the Licensed System, (v)
authorization for BISYS and STN (or such other provider of the Licensed
System), acting individually, to act as attorney in fact for the Trust to
obtain data from Intermediaries and to give instructions relating to the
delivery of such data (including the manner of such delivery), and (vi)
copies of all Shareholder Information Agreements between Intermediaries and
the Trust, its distributor, or any party acting on the Trust's behalf. The
Trust shall give BISYS advance written notice of any modification or
termination of any Shareholder Information Agreement or any new agreements
entered into with Intermediaries, and the terms thereof.
C. Redemption fee oversight: For accounts held on BISYS' transfer agent
shareholder recordkeeping system, monitor redemption fee application by
each Fund; monitor the payment of such redemption fees; track and report
each Fund's waivers of such redemption fees when circumstances suggest an
Intermediary is not assessing redemption fees or that abusive market timing
is occurring; follow-up with Intermediaries on the imposition and
collection of such redemption fees on behalf of the Funds; and provide
monthly reporting to the Trust, the Board and the CCO.
D. Exception management: Communicate and follow-up with Intermediaries
and Trust officers or designees on any identified exceptions to the Funds'
market timing policies. Actions could include requesting that the
Intermediary provide more information on trading practices of an account
owner, restricting or prohibiting further purchases or exchanges by a
specific shareholder who has engaged in trading that violates a Fund's
market timing policies, or coordinating with the Trust and the distributor
the termination of a selling group agreement.
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SCHEDULE 2
FEES
PROGRAM LAUNCH SERVICES FEE:
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One-time implementation fee of $5,000 payable upon execution
MONITORING FEES:
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$5,000 per annum payable in equal monthly installments of $416.67
OMNIBUS ACCOUNT REQUEST FOR DATA (RFD) FEES*
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$12.50 per RFD
EXCEPTION ADMINISTRATION FEES:*
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Direct Activity $50 per exception
Omnibus Activity $75 per exception
*calculated monthly based on transactions during the month
Except for the implementation fee, the fees set forth above will be payable
monthly. These fees do not include any fees or charges assessed by
Intermediaries, registered clearing agencies, or other third parties related to
the request for and/or transmission of data, all of which fees and charges will
be payable by the Trust.
Commencing on the one-year anniversary of the Effective Date, BISYS may annually
increase the fees set forth above by up to an amount equal to the most recent
annual percentage increase in consumer prices for services as measured by the
United States Consumer Price Index entitled "All Services Less Rent of Shelter"
or a similar index should such index no longer be published.
In addition, BISYS may increase the fees set forth above by the amount necessary
to cover only BISYS' actual costs in the event that changes in the Rule result
in increases in BISYS' actual costs of providing the Services (such as increases
in the cost of utilizing the Licensed System). BISYS shall provide the Trust
with a minimum of 90 days' advance written notice of any such increase in fees
before any such increase shall become effective.
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SCHEDULE 3
ADDITIONAL TERMS AND CONDITIONS
Capitalized terms used in this Schedule 3 not otherwise defined below shall
have the meanings given to them in this Agreement. For purposes of this Schedule
3, the following terms shall have the meanings given:
"Affiliate," whether capitalized or not, shall mean, with respect to a
specified person, any person which directly or indirectly controls, is
controlled by, or is under common control with the specified person as of the
date of this Agreement, for as long as such relationship remains in effect.
"Application(s)" shall mean the data warehousing, analytics, and
administrative tools that are part of the proprietary technology solution
developed by STN to assist mutual funds, their boards of directors and their
principal underwriters to satisfy the Rule 22c-2 Requirements.
"BISYS Material" shall mean the designs, plans specifications, Shareholder
Data provided to STN by BISYS, Fund Data and other materials, and any other data
provided to STN pursuant to the STN Agreement or this Agreement, by, or on
behalf of, BISYS, but specifically excluding Shareholder Data provided to STN by
Funds or Intermediaries.
"Confidential Information" shall mean all business information disclosed by
one party to the other in connection with this Agreement unless it is or later
becomes (i) publicly available through no fault of the other party, (ii)
rightfully, independently developed, or (iii) obtained by the other party from
independent sources free from any duty of confidentiality. Without limiting the
generality of the foregoing, Confidential Information shall include BISYS
Material, Shareholder Data, Fund Data and reports generated using the
Shareholder Data or Fund Data and the details of the Trust's and BISYS' business
and computer operations and shall also include Proprietary Items. Confidential
Information shall include the pricing and specific terms of this Agreement,
other than those terms, conditions, restrictions and limitations that BISYS
customers are generally subject to and which BISYS may disclose to its
customers. Confidential Information shall not include the fact that this
Agreement has been signed and the types of services that will be provided
pursuant to this Agreement.
"Copy" whether capitalized or not, shall mean any paper, disk, tape, film,
memory device, or other material or object on or in which any words, object
code, source code or other symbols are written, recorded or encoded, whether
permanent or transitory.
"Database Material" shall mean the Shareholder Data and the Fund Data.
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"Documentation" shall mean the description of the Applications set forth in
Exhibit A to the STN Agreement and the user guides and manuals for the
Applications that STN makes generally available to Application users. In the
event of a conflict between Exhibit A and the Application manuals, the
Application manuals shall control.
"Fund Data" shall mean the data and information provided by the Funds, or
BISYS on behalf of the Funds pursuant to this Agreement, in connection with the
processing to be performed using the Licensed System, including, without
limitation, information concerning the policies established under the Rule for
the purpose of eliminating or reducing any dilution of the value of the
outstanding securities issued by each such Fund, such as the Trust Policies and
the Trust Documents.
"Licensed System" shall mean, for purposes of this Schedule 3 only: (a) the
Applications and the Documentation, whenever the context requires that STN is
the provider of the Licensed System utilized by BISYS in connection with the
provision of trade monitoring services hereunder, and (b) such other proprietary
system utilized by BISYS in connection with the provision of trade monitoring
services provided hereunder.
"Person," whether capitalized or not, means any individual, sole
proprietorship, joint venture, partnership, corporation, company, firm, bank,
association, cooperative, trust, estate, government, governmental agency,
regulatory authority, or other entity of any nature.
"Proprietary Items" shall mean, collectively, the Licensed System, the
object code and the source code for the Licensed System, interfaces, the visual
expressions, screen formats, report formats and other design features of the
Licensed System, all ideas, methods, algorithms, business processes, formulae
and concepts used in developing and/or incorporated into the Licensed System,
all future modifications, revisions, updates, releases, refinements,
improvements and enhancements of the Licensed System, all adaptations or
derivative works (as such term is used in the U.S. copyright laws) based upon
any of the foregoing, and all copies of the foregoing (including any of the
above items provided or developed by BISYS, which shall be deemed part of the
"Licensed System" for license purposes, but for which STN has no intellectual
property indemnity obligations to BISYS).
"Rule 22c-2 Requirements" shall mean the requirements imposed by the Rule
on mutual funds, their boards of directors, and their principal underwriters
with respect to the imposition of redemption fees, the collection of information
from financial intermediaries, and recordkeeping relating thereto.
"Shareholder" shall mean a shareholder in the Funds, as defined in the
Rule.
"Shareholder Data" shall mean the data with respect to shareholders in a
Fund that is delivered to STN for access by BISYS and the Trust pursuant to the
terms of this Agreement or the STN Agreement, by either an Intermediary as
required, pursuant to the Rule or applicable agreement, or by BISYS.
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"Software," whether capitalized or not, shall mean computer software in
human readable form that is not suitable for machine execution without
intervening interpretation or compilation.
"SRO" shall mean any national securities exchange or national securities
association.
"Third Party Provider" shall mean any third party that provides data or
services to BISYS (directly or indirectly) in connection with the Licensed
System, including, without limitation, any Intermediary providing data for the
Applications.
1. RIGHT TO ACCESS AND USE. BISYS grants the Trust, subject to the terms
and conditions of this Agreement, a non-exclusive, non-transferable,
limited-scope, right to view the reports generated by Applications, during the
term of this Agreement. The Trust acknowledges and agrees that the Licensed
System provided by BISYS is subject to the terms and conditions set forth in
this Agreement.
2. LIMITED USE. The Trust may use the reports and other information
generated by the Licensed System as provided by BISYS pursuant to this
Agreement, only in the ordinary course of its business operations and for its
own business purposes in order to help comply with the Rule and other trading
restriction rules established by the Trust.
3. THIRD PARTY SOFTWARE AND SERVICES. The Trust acknowledges that, in
connection with its utilization of the Licensed System (to the extent permitted
by this Agreement), BISYS may make available to the Trust certain third party
software and/or services, which shall be deemed part of the Licensed System. The
Trust's use of the third party software and/or services shall be subject to the
terms and conditions of this Agreement and any other terms and conditions to
which the Trust may agree in writing, or which are standard in the industry and
accepted industry-wide (and generally available to the public via industry
press), such as NSCC terms and conditions, and which have not been rejected by
the Trust upon written notice to BISYS. Notwithstanding the above, the Trust
acknowledges that BISYS and STN shall have no liability for, nor do they warrant
as to the integrity of, third party software or services, but that BISYS' only
obligation to the Trust with respect to third party software or services is to
notify STN of any known error or defect, and that STN's only obligation to BISYS
with respect to the third party software and services (other than Delta Data
where STN has agreed to be liable for and to warrant Delta Data's software and
services to the same extent as STN is liable for and warrants its owns software)
is to induce the Third Party Provider to cure any known error or defect in the
third party software or services.
4. SHAREHOLDER DATA. The Trust hereby acknowledges that Intermediaries,
and not STN or BISYS (except to the extent available to BISYS as transfer agent
to the Trust), provide the Shareholder Data and that the Trust's access to the
Shareholder Data
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through BISYS' and the Trust's use of the Licensed System is dependent upon
delivery of the Shareholder Data by such Intermediaries. The Trust also
acknowledges that Intermediaries may supplement, modify or remove the
Shareholder Data or discontinue availability of Shareholder Data, in which case
STN and BISYS shall not be held responsible for such supplementation,
modification, removal or discontinuance. The Trust agrees that it will be bound
to those terms and conditions imposed by Intermediaries to which the Trust or
BISYS has agreed in writing.
5. COMPLIANCE WITH LAWS. Neither party nor STN shall have any liability
for the other party's failure to comply with any or all laws applicable to such
other party or to obtain any necessary consents from any person, including,
without limitation, any failure by BISYS or STN to obtain all necessary consents
from Intermediaries, regarding the collection, use and distribution to BISYS or
STN of the Shareholder Data for the purposes set forth herein.
6. DATABASE. The Trust hereby authorizes BISYS and STN to maintain a
database of all Fund Data on the Licensed System ("Database"). The Database will
also contain Shareholder Data. Some Shareholder Data will be provided by BISYS
(as transfer agent for the Funds and pursuant to this Agreement) and some will
be provided by third parties under contract with STN. To the extent that
Shareholder Data is provided by BISYS, the Trust hereby authorizes BISYS and STN
to maintain such Shareholder Data on the Database. STN and BISYS shall have a
limited, non-transferable, license to use the Fund Data and Shareholder Data as
described herein. The Trust acknowledges that BISYS and STN shall have the right
to (i) use the Database for the purposes of performing its obligations under
this Agreement and the STN Agreement, (ii) use the Database in a lawful manner
to aggregate data for the purpose of analyzing the effectiveness of the Licensed
System and to enhance such effectiveness, (iii) use the Database in a lawful
manner to aggregate data for the purpose of creating statistical analyses and
reports and lawfully distributing information, in aggregated format, contained
in or derived from the Database to any Persons provided that in each of the
foregoing uses of (ii) and (iii) above, the transaction specific data and the
identities of BISYS, the Trust and the Shareholders for each specific
transaction are not disclosed, and that the published version of such data is
not presented in a way that would enable viewers to identify a particular Fund
or Shareholder through unique characteristics such as size, geography or unusual
Fund rule. BISYS may also use such information for its own lawful, internal
business purposes including fulfilling its obligations under this Agreement,
subject to its obligations to maintain the confidentiality of such information.
If the Trust requests a copy of all Shareholder Data in the Database relating to
the Trust, or if the Trust requests a copy of the Fund Data for the Trust, BISYS
will request that STN fulfill the request within five (5) business days, with
the understanding that the size and complexity of the request may affect actual
turnaround time. Notwithstanding anything to the contrary in this Agreement, (i)
STN has disclaimed any ownership rights in the Shareholder Data and the Fund
Data, and (ii) the entity that authorizes the subject Shareholder Data and/or
Fund Data to be used for purposes of the STN Agreement is the entity that can
revoke or modify that authority.
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7. RIGHT TO PERFORM SERVICES; NO INFRINGEMENT.
(a) BISYS warrants to the Trust that BISYS has been authorized by STN
to grant the Trust the limited right under this Agreement to use the reports
generated by the Licensed System provided by BISYS to the Trust, as permitted
under this Agreement, and that STN has warranted to BISYS that the format of
such reports when properly used for the purpose and in the manner specifically
authorized by this Agreement, does not infringe in any material respect upon any
United States patent, trade xxxx, service xxxx or copyright rights, or any trade
secret, or other proprietary rights of any person. The Trust acknowledges that
STN has no obligation to defend, indemnify or hold the Trust harmless from and
against any and all liabilities, damages, awards, settlements, losses, claim and
expenses, including reasonable attorney fees and expenses and costs of
investigation (collectively, "Damages") to the extent attributable to a
violation of the foregoing warranty, however, BISYS may share with the Trust any
amounts finally awarded by a court or agreed to in settlement by BISYS that are
intended to reimburse BISYS and/or the Trust for its Damages as a result of a
violation of the foregoing warranty. BISYS shall have no liability or obligation
under this Section unless the Trust gives written notice to BISYS within ten
(10) days (provided that later notice shall relieve BISYS of its liability and
obligations under this Section only to the extent that STN or BISYS is
prejudiced by such later notice) after any applicable infringement claim, action
or proceeding is initiated against the Trust. The Trust shall allow BISYS or
STN, if STN so desires, at STN's sole option, to have sole control of the
defense and all settlement discussions regarding the claim, action or
proceeding; provided, however, that the Trust may, at its option and expense,
participate and appear with BISYS or STN, as the case may be, in such claim,
action or proceeding. BISYS or STN, as applicable, in defending any such claim,
action or proceeding, except with the written consent of the Trust, shall not
consent to entry of any judgment or enter into any settlement which (i) does not
include, as an unconditional term, the grant by the claimant to the Trust a
release of all liabilities (and does not impose any responsibility or obligation
upon the Trust with the exception of actions required to cure any infringement,
the cost of which if any, shall not be borne by the Trust) in respect to such
claim, action or proceeding; or (ii) otherwise adversely affects the rights of
the Trust. If a settlement obligates the Trust to pay additional fees as a
condition of continuing to use the reports generated by the Licensed System, and
BISYS does not agree to pay such additional fees, the Trust shall have the
right, within thirty (30) days after receiving notice of such increase, to
terminate this Agreement without penalty.
(b) If any applicable infringement claim, proceeding or action is
initiated, or in BISYS' or STN's sole opinion is likely to be initiated, then
either BISYS or STN shall have the option, at its expense, to:
(i) modify or replace all or the infringing part of the Licensed
System so that it is no longer infringing, provided that the Licensed System's
functionality, form, fit, or quality does not change in any material adverse
respect; or
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(ii) procure the right to continue using or providing the
infringing part of the Licensed System; or
(iii) obtain a stay, discharge or dismissal of any claim or
injunction; or
(iv) remove all or the infringing part of the Licensed System and,
to the extent applicable, refund to the Trust the corresponding portion of any
monthly fee paid in advance, in which case this Agreement shall terminate with
respect to the affected parts of the Licensed System and the Services affected
thereby.
(c) This Section states BISYS' and STN's sole responsibilities and the
Trust's sole remedies for claims arising under or out of any breach of
intellectual property rights in the Licensed System by BISYS or STN .
8. EXCLUSION FOR UNAUTHORIZED ACTIONS. BISYS and STN each shall have no
liability under any provision of this Agreement with respect to any performance
problem, warranty, claim of infringement or other matter to the extent
attributable to (i) any unauthorized or improper use, alteration, addition or
modification of the Licensed System, or (ii) any breach of this Agreement by the
Trust.
9. APPLICATION OF DATA. Except to the extent that the results are
inaccurate due to STN's or BISYS' gross negligence, willful misconduct or bad
faith, BISYS and STN each shall have no liability for any loss or damage
resulting from any application of the results obtained from the use of the
Licensed System or any other services provided by STN and/or BISYS to the Trust,
or from any unintended or unforeseen results obtained from the use of the
Licensed System or of any other services provided under this Agreement.
10. DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER BISYS
NOR STN MAKES ANY REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR
IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, REGARDING THE LICENSED SYSTEM OR COMPUTER HARDWARE OR ANY
OTHER MATTER PERTAINING TO THIS AGREEMENT. NEITHER STN NOR BISYS REPRESENTS OR
WARRANTS THAT THE SERVICES OR USE OF THE LICENSED SYSTEM BY BISYS OR THE COMPANY
GUARANTEES COMPLIANCE WITH THE RULE OR ANY OTHER FEDERAL, STATE, LOCAL OR SRO
LAW OR REGULATION. NEITHER STN NOR BISYS ASSUMES ANY RESPONSIBILITY FOR ANY
ASPECT OF LEGAL AND REGULATORY COMPLIANCE BY OR ON BEHALF OF THE COMPANY, NOR
SHALL THE COMPANY REPRESENT OTHERWISE TO ANY PERSON. THE COMPANY REMAINS
RESPONSIBLE FOR COMPLIANCE WITH THE RULE.
11. LIMITATIONS. (a) THE COMPANY AGREES THAT EXCEPT FOR STN'S
RESPONSIBILITY TO BISYS FOR A THIRD PARTY CLAIM UNDER
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SECTION 6.3 OF THE STN AGREEMENT (A CLAIM WITH RESPECT TO INFRINGEMENT BY THE
LICENSED SYSTEM), STN'S MAXIMUM AGGREGATE TOTAL LIABILITY TO BISYS AND ANY
CUSTOMER OR CLIENT OF BISYS, INCLUDING THE COMPANY, UNDER THIS AGREEMENT AND/OR
THE STN AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL AMOUNT OF THE
MONTHLY FEES PAID TO STN BY BISYS FOR ALL BISYS CUSTOMERS IN THE AGGREGATE FOR
THE FIRST SIX MONTHS OF THE STN AGREEMENT.
(b) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL THE LIABILITY OF BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS EXCEED IN THE AGGREGATE THE AMOUNT
OF FEES PAID TO BISYS BY THE COMPANY WITH RESPECT TO THE SERVICES DURING THE 6
MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM FOR DAMAGES IS
ASSERTED AGAINST BISYS.
12. CONSEQUENTIAL DAMAGE EXCLUSION. UNDER NO CIRCUMSTANCES ARISING FROM
THIS AGREEMENT, THE STN AGREEMENT OR ANY OTHER AGREEMENT BETWEEN BISYS AND THE
PROVIDER OF THE LICENSED SYSTEM SHALL BISYS OR STN AND THEIR AFFILIATES, OR ANY
THIRD PARTY PROVIDERS (EXCLUDING INTERMEDIARIES) BE LIABLE TO THE COMPANY OR ANY
OTHER PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY
INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF
ANY KIND, INCLUDING SUCH DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT OR
TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS
OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE OR STRICT
LIABILITY), OR OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF BISYS OR STN
(OR THEIR AFFILIATE OR A THIRD PARTY PROVIDER (EXCLUDING INTERMEDIARIES), AS THE
CASE MAY BE) HAS BEEN ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES.
13. DATA EXCLUSION. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, UNDER NO
CIRCUMSTANCES ARISING FROM THIS AGREEMENT, THE STN AGREEMENT OR ANY OTHER
AGREEMENT BETWEEN BISYS AND THE PROVIDER OF THE LICENSED SYSTEM SHALL BISYS OR
STN OR THEIR AFFILIATES, OR ANY THIRD PARTY PROVIDERS (EXCLUDING
INTERMEDIARIES), BE LIABLE FOR TRUTH, ACCURACY, SEQUENCE, TIMELINESS OR
COMPLETENESS OF FUND DATA, SHAREHOLDER DATA OR ANY OTHER INFORMATION (INCLUDING
SERVICES PROVIDED BY THIRD PARTY PROVIDERS) PROVIDED BY OR PROCESSED BY THE
LICENSED SYSTEM, FOR ANY INCONVENIENCE CAUSED BY THE DISCONTINUANCE OF SERVICES
OR DATA BY A THIRD PARTY PROVIDER (INCLUDING DATA PROVIDED BY AN INTERMEDIARY),
OR FOR ERRORS, MISTAKES OR
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OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS IN THE OPERATION OF THE
LICENSED SYSTEM FROM WHATEVER CAUSE, EXCEPT TO THE EXTENT OF SUCH PARTY'S GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH.
14. OTHER EXCLUSIONS. UNDER NO CIRCUMSTANCES ARISING FROM THIS AGREEMENT OR
THE STN AGREEMENT OR ANY OTHER AGREEMENT BETWEEN BISYS AND THE PROVIDER OF THE
LICENSED SYSTEM SHALL BISYS OR STN (OR ANY OF THEIR AFFILIATES PROVIDING
SOFTWARE OR SERVICES UNDER THIS AGREEMENT) OR ANY THIRD PARTY PROVIDER
(EXCLUDING INTERMEDIARIES) BE LIABLE TO THE COMPANY OR ANY OTHER PERSON FOR
TRADING LOSSES, INACCURATE DISTRIBUTIONS, LOST REVENUES, LOST PROFITS, LOSS OF
BUSINESS, OR ANY OTHER LOSSES RESULTING FROM BISYS' USE OF THE LICENSED SYSTEM
OR ANY OTHER SERVICES PROVIDED HEREUNDER, INCLUDING THE DATA TRANSMITTED ON THE
LICENSED SYSTEM AND THE DATA AND SERVICES PROVIDED BY THIRD PARTY PROVIDERS,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING
WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER OR
NOT FORESEEABLE, EVEN IF BISYS, STN AND THEIR AFFILIATES AND THE THIRD PARTY
PROVIDERS OR OTHER THIRD PARTIES HAVE BEEN ADVISED OR WERE AWARE OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGES. THE COMPANY'S USE OF THE LICENSED SYSTEM
AND ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT BE DEEMED LEGAL,
TAX OR INVESTMENT ADVICE.
15. OTHER LIMITATIONS.
(a) The warranties made by BISYS in this Agreement, and the obligations
of BISYS under this Agreement, run only to the Trust and not to any third
person, including any customers or affiliates of the Trust. Except for those
terms and conditions that specifically apply to Third Party Providers (excluding
Intermediaries), under no circumstances shall any Person other than STN be
considered a third party beneficiary of this Agreement or otherwise entitled to
any rights or remedies under this Agreement. The Trust shall have no rights or
remedies against BISYS or STN except as specifically provided in this Agreement.
No action or claim of any type relating to this Agreement may be brought or made
by the Trust more than one (1) year after the Trust first has knowledge of the
basis for the action or claim.
(b) Except to the extent resulting from BISYS' gross negligence, bad
faith, or willful misconduct in the performance of its obligations hereunder,
neither BISYS nor STN shall be responsible or liable to the Trust or any Person
for any message transmitted or received through the Licensed System.
16. CONFIDENTIAL INFORMATION. All Confidential Information of one party
("Disclosing Party") in the possession of the other ("Receiving Party"), whether
or not
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authorized, shall be held in strict confidence, using at least the same standard
of care as it uses to protect its own confidential information and the Receiving
Party shall take all steps reasonably necessary to preserve the confidentiality
thereof. One party's Confidential Information shall not be used or disclosed by
the other party for any purpose except as necessary to implement or perform this
Agreement, or except as required by law or judicial process, provided that the
other party is given a reasonable opportunity to obtain a protective order. The
Receiving Party shall limit its use of and access to the Disclosing Party's
Confidential Information to only those of its employees, agents or
representatives whose responsibilities require such use or access. The Receiving
Party shall advise all such employees, agents and representatives before they
receive access to or possession of any of the Disclosing Party's Confidential
Information, of the confidential nature of the Confidential Information and
require them to abide by the terms of this Agreement. The Receiving Party shall
be liable for any breach of this Agreement by any of its employees, agents or
representatives or any other Person who obtains access to or possession of any
of the Disclosing Party's Confidential Information from or through the Receiving
Party. For the purpose of this Agreement, each of BISYS and the Trust
acknowledges that the Shareholder Data provided by the Trust and the Fund Data
is considered Confidential Information of the Trust and its customers and
clients (as appropriate), that Shareholder Data provided by Intermediaries is
considered Confidential Information of the Intermediaries and their customers
and clients and may also be the Confidential Information of the Trust and its
customers and clients, and each of BISYS and the Trust shall maintain the
confidentiality of such information in accordance with the terms of this
Agreement and all applicable laws, regulations and rules. Upon the termination
or expiration of this Agreement, or sooner upon request of the Disclosing Party
to the extent that the Confidential Information is no longer required by the
Receiving Party in order to perform its obligations hereunder, any Confidential
Information (and any Copy thereof) of the Disclosing Party shall be returned to
Disclosing Party by the Receiving Party, or at the option of the Disclosing
Party, shall be destroyed by the Receiving Party and shall be certified in
writing by the Receiving Party to have been destroyed; provided, however, that
this requirement shall not apply to the Shareholder Data or Fund Data in the
possession of BISYS or the Trust (whether in the form of reports generated by
the Licensed System or otherwise), it being understood that BISYS and the Trust
shall be permitted to retain such Shareholder Data, Fund Data and reports,
subject to the continuing obligation of confidentiality.
17. PRIVACY. Each of BISYS and the Trust hereby acknowledges that each of
them, Intermediaries, STN and their respective customers may be subject to
various privacy laws and regulations, including the Xxxxx-Xxxxx-Xxxxxx Act of
1999 (15 U.S.C. [SEC] 6801 et seq), the Fair and Accurate Credit Transaction
Act of 2003, the California Online Privacy Protection Act of 2003, the European
Data Protection Directive (95/46/EC), the Data Protection Xxx 0000, the Personal
Information Protection and Electronic Documents Act, and any rules or
regulations promulgated under any of the foregoing or any similar laws
(including Securities and Exchange Commission Regulation S-P) and that each of
the Trust and BISYS are required to obtain certain undertakings from the other
with regard to the privacy, use, protection and destruction of nonpublic
personal financial information of the Trust, BISYS and the Shareholders.
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Therefore, notwithstanding anything to the contrary contained in this Agreement,
(1)BISYS agrees that it shall not disclose or use any Client Data (as defined
below) except to the extent necessary to carry out its obligations under this
Agreement (including such authorized disclosures to STN ) and for no other
purpose, (2) the Trust agrees that it shall not disclose or use Client Data
except to the extent necessary to comply with the Rule (and for no other
purpose), including such necessary disclosures to its auditors and legal
representatives, and (3) BISYS and the Trust each agrees that it shall maintain,
and shall require all third parties approved above to maintain, effective
information security measures to protect Client Data from unauthorized
disclosure or use, and it shall provide the other with information regarding
such security measures upon the reasonable request of the other and promptly
provide the other with information regarding any failure of such security
measures or any security breach related to Client Data. In addition to the
foregoing, STN has advised BISYS that STN has adopted written policies and
procedures that address administrative, technical and physical safeguards for
the protection of Client Data. For the purposes of this Agreement, Client Data
means the nonpublic personal information (as defined in 15 U.S.C. [SEC]
6809(4)) of the Trust and its customers, BISYS and its customers, Intermediaries
and their customers and the Shareholders received by STN in connection with this
Agreement and the STN Agreement.
18. PROPRIETARY ITEMS AND OWNERSHIP RIGHTS. The Proprietary Items are trade
secrets and proprietary property of STN, or a Third Party Provider, having great
commercial value to such Persons. All Proprietary Items provided to the Trust
under this Agreement are being provided on a strictly confidential and limited
use basis. The Trust shall not, directly or indirectly, communicate, publish,
display, loan, give or otherwise disclose any Proprietary Item to any Person, or
permit any Person to have access to or possession of any Proprietary Item. Title
to all Proprietary Items and all related patent, copyright, trademark, service
xxxx, trade secret, intellectual property and other ownership rights shall
remain exclusively with STN (or the Third Party Provider, as applicable), even
with respect to such items that were created by STN or a Third Party Provider
specifically for or on behalf of BISYS or the Trust. This Agreement is not an
agreement of sale, and no title, patent, copyright, trademark, service xxxx,
trade secret, intellectual property or other ownership rights to any Proprietary
Items are transferred to the Trust by virtue of this Agreement. All copies of
Proprietary Items in the possession of the Trust shall remain the exclusive
property of STN or Third Party Provider (as appropriate) and shall be deemed to
be on loan to the Trust during the term of this Agreement. The Trust shall not
represent to any person or entity that it has any ownership rights or ownership
interests in the Licensed System.
19. BREACH OF THIRD PARTY PROVIDER TERMS AND CONDITIONS. Neither BISYS nor
STN shall be responsible or liable to the Trust or any Person for any breach of
the terms, conditions and procedures of a Third Party Provider arising out of
the Trust's use or dissemination of any services provided by the Third Party
Providers.
20. LIMITATION ON LIABILITY DUE TO HARDWARE. UNDER NO CIRCUMSTANCE ARISING
FROM THIS AGREEMENT, THE STN AGREEMENT OR ANY OTHER AGREEMENT BETWEEN BISYS AND
A PROVIDER OF THE
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LICENSED SYSTEM SHALL BISYS OR STN BE LIABLE TO THE COMPANY OR ANY OTHER PERSON
FOR ANY LOSS OF PROFITS, LOSS OF USE, OR FOR ANY DAMAGE SUFFERED OR COSTS AND
EXPENSES INCURRED BY THE COMPANY OR ANY OTHER PERSON, OF ANY NATURE OR FROM ANY
CAUSE WHATSOEVER, WHETHER DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, ARISING
OUT OF OR RELATED TO COMPUTER HARDWARE INSTALLED AT THE COMPANY'S LOCATION;
PROVIDED THAT TO THE EXTENT SUCH HARDWARE WAS PROVIDED UNDER ANOTHER AGREEMENT
BETWEEN STN AND THE COMPANY, THE TERMS OF THAT AGREEMENT SHALL APPLY TO STN'S
RESPONSIBILITY AND LIABILITY FOR SUCH HARDWARE.
21. ENFORCEMENT. Each party acknowledges that the restrictions in this
Schedule 3 are reasonable and necessary to protect the other's legitimate
business interests. Each party acknowledges that any breach of any of the
provisions of Sections 16-21 of this Schedule 3 shall result in irreparable
injury to the other for which money damages could not adequately compensate. If
there is a breach, then the injured party shall be entitled, in addition to all
other rights and remedies which it may have at law or in equity, to have a
decree of specific performance or an injunction issued by any competent court,
requiring the breach to be cured or enjoining all Persons involved from
continuing the breach. The existence of any claim or cause of action that a
party or any other Person may have against the other shall not constitute a
defense or bar to the enforcement of any of the provisions of Sections 16-21 of
this Schedule 3.
22. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR
HEREAFTER ENACTED THAT IS BASED ON OR SIMILAR TO THE UNIFORM COMPUTER
INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS SHALL NOT APPLY.
23. THIRD PARTY BENEFICIARY RIGHTS. STN is hereby designated as a third
party beneficiary of this Agreement for purposes of enforcing the
confidentiality, intellectual property, and limitation of liability obligations
of the Trust as provided in this Agreement.
24. NO RESPONSIBILITY TO FIX BUGS. The Trust acknowledges that BISYS is not
responsible for, nor does it warrant the integrity or fitness for a particular
purpose of, nor can it fix errors or defects in, the Licensed System and BISYS'
only obligation with respect to the Licensed System is to inform the provider of
such Licensed System of any bug or deficiency in the Licensed System, of which
BISYS is aware or is made aware.
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25. NO RESPONSIBILITY TO VERIFY DATA. The Trust acknowledges that BISYS'
ability to monitor trades and to provide the Services (including, without
limitation, the ability to provide documentation and back-up for results
obtained through the use of the Licensed System) is dependent upon (i) timely
delivery of accurate data by Intermediaries to the Licensed System and (ii)
continued availability of such data on the Licensed System. The Trust
acknowledges that Intermediaries may supplement, modify, remove or discontinue
providing data, or discontinue the availability of such data on the Licensed
System, in which event BISYS may be limited in its ability to monitor the trades
or to provide the Services with respect to such data. BISYS shall have no
liability in this regard and shall have no obligation to monitor trades to the
extent that data is not available on the Licensed System. BISYS shall have no
responsibility for data provided by Intermediaries or for the supplementation,
modification, removal or discontinuance of the provision or availability of such
data. BISYS shall have no responsibility for the accuracy or adequacy of Trust
Documents, Trust Policies or any data received from Intermediaries or for the
results or output received from using the Licensed System. Neither BISYS nor
the provider of the Licensed System shall have any responsibility or obligation
associated with verifying and/or confirming information entered on the Licensed
System.
26. REPRESENTATION AS TO NO INFRINGEMENT. The Trust represents that the
Database Material does not infringe upon any patent, copyright, trade secret or
other proprietary right of any person or entity.
27. CONSENT TO TERMS AND CONDITIONS OF THIRD PARTY PROVIDERS. The Trust
acknowledges that in connection with the provision of the Services, BISYS may be
asked by Third Party Providers to agree to certain terms and conditions and the
imposition of certain fees. The Trust hereby agrees that it will promptly (and
in any event not later than five (5) business days from request) respond to any
request made by BISYS with respect to whether the Trust will consent to the
terms, conditions and fees being imposed by any Third Party Provider. Failure to
promptly respond shall be deemed acceptance. The Trust understands that any
failure to consent to such terms, conditions and fees may result in the failure
to receive information from Intermediaries. The Trust agrees to be bound by any
such terms and conditions and to reimburse BISYS for any such fees imposed, and
additionally agrees to be bound, without any notice or rights of consent, by any
terms and conditions, and to reimburse BISYS for any fees that are standard in
the industry and accepted industry-wide.
28. AVAILABILITY OF LICENSED SYSTEM. The Trust acknowledges that the
Licensed System may not be ready by the effective date of the Rule, and that
once the Licensed System has been implemented and ready for use, it may not be
available at all times. The Trust acknowledges that BISYS shall have no
liability if the Licensed System is not implemented or operational by the
effective date of the Rule and that BISYS shall be exempt from any
responsibility or liability with respect to the trade monitoring services during
and with respect to any period that the Licensed System is unavailable.
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29. SERVICES HOURS. BISYS shall have no obligation to perform the Services,
except during normal business hours.
30. TAXES. The Trust shall pay any taxes of any jurisdiction that are
imposed upon it or BISYS' use of the Licensed System or other third party
software or services or as otherwise imposed in connection with BISYS' provision
of the Services, excluding only taxes based upon BISYS' net income.
31. INDEMNIFICATION. (a) The Trust shall indemnify and hold harmless BISYS
and its affiliates, agent, subcontractors and any third party providers of the
Licensed System or other services or software, and each of their officers,
directors, employees, agents and licensors (collectively, the "BISYS Indemnified
Parties") from and against any and all liabilities, damages, awards,
settlements, losses, claims and expenses, including, without limitation,
reasonable attorneys' fees and expenses (including, without limitation, in-house
counsel expenses) and costs of investigation (collectively, "Damages") resulting
from or arising out of:
(i) the Trust's breach of any term or provision of this Agreement;
(ii) The Trust's breach of the warranty set forth in Section 7 of
this Schedule 3;
(iii) BISYS' provision of the Services, except to the extent of
BISYS' gross negligence or willful misconduct in the provision of the Services
hereunder;
(iv) BISYS' use of the Licensed System and/or any information
transmitted through the Licensed System, except to the extent of BISYS' gross
negligence or willful misconduct in the provision of the Services hereunder;
(v) any obligation of BISYS to indemnify any Third Party Provider,
except to the extent of BISYS' gross negligence or willful misconduct in the
provision of the Services hereunder;
(vi) (a) the application of the results obtained through the use of
the Licensed System, (b) any unintended or unforeseen results obtained from the
use of the Licensed System, or (c) any action taken or omitted to be taken based
on (1) information transmitted through the Licensed System or by an
Intermediary, or (2) results or output processed on the Licensed System, except
to the extent of BISYS' gross negligence or willful misconduct in the provision
of the Services hereunder;
(vii) any lawsuit brought by the Trust or its shareholders against
the provider of the Licensed System arising out of, relating to, or resulting
from, whether directly or indirectly, the provision of the Services by BISYS,
except to the extent of
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BISYS' gross negligence or willful misconduct in the provision of the Services
hereunder;
(viii) any lawsuit brought by a shareholder of the Trust against
BISYS, except to the extent of BISYS' gross negligence or willful misconduct in
the provision of the Services hereunder;
(ix) any breach of a Shareholder Information Agreement or other
terms or conditions of an Intermediary;
(x) any inaccuracy or error in the Trust Documents, Trust Policies,
shareholder data or data received from Intermediaries; or
(xi) any worms, viruses, Trojan horses, cancelbots or other devices
that disrupt, disable, harm or otherwise impede in any manner the operation of
the Licensed System or BISYS' or STN's associated software, firmware, hardware
or network.
(b) The BISYS Indemnified Parties shall promptly notify the Trust in
writing of any such claim, action or proceeding (but the failure to do so shall
not relieve the Trust of any liability hereunder, except to the extent that the
Trust has been prejudiced therefrom). The Trust shall reimburse the BISYS
Indemnified Parties for all expenses, as and when incurred, as a result of any
such claim, action or proceeding. The Trust, in defending any such claim, action
or proceeding, except with the written consent of the BISYS Indemnified Parties,
shall not consent to entry of any judgment or enter into any settlement which
(i) does not include, as an unconditional term, the grant by the claimant to the
BISYS Indemnified Parties of a release of all liabilities (and does not impose
any responsibility or obligation upon the BISYS Indemnified Parties) in respect
of such claim, action or proceeding, or (ii) otherwise adversely affects the
rights of the BISYS Indemnified Parties.
(c) Any obligation of BISYS to indemnify the Trust under the Primary
Agreement shall also apply to the Services, provided, however, that with respect
to the Services such indemnification obligation shall be limited to damages
arising out of BISYS' gross negligence, bad faith or willful misconduct, and
shall not extend to BISYS' negligence, if any.
32. OPEN NEGOTIATIONS. BISYS AND THE COMPANY HAVE FREELY AND OPENLY
NEGOTIATED THIS AGREEMENT INCLUDING THE PRICING WITH THE KNOWLEDGE THAT THE
LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF
THIS AGREEMENT.
33. SHAREHOLDER INFORMATION AGREEMENTS. BISYS shall be neither
responsible nor liable to the Trust or any person for any breach of a
Shareholder Information Agreement or any terms, conditions or procedures of an
Intermediary to which the Trust is bound.
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34. NO THIRD PARTY BENEFICIARY RIGHTS TO STN AGREEMENT. The Trust
acknowledges that it has no contractual rights to xxx the provider of the
Licensed System and that the Trust is not a third-party beneficiary to the STN
Agreement or any other agreement with the provider of the Licensed System.
35. FORCE MAJEURE. Neither party shall be liable for, nor shall either
party be considered in breach of this Agreement due to any failure to perform
its obligations under this Agreement as a result of a cause reasonably beyond
its control, including any act of God or a public enemy, act or terrorism, act
of any military, civil or regulatory authority, change in any law or regulation,
fire, flood, earthquake, storm or other like event, disruption or outage of
communications (including the Internet or other networked environment), power or
other utility, labor problem, unavailability or supplies, or any other cause,
whether similar or dissimilar to any of the foregoing, which could not have been
prevented by the non-performing party with reasonable care.
36. CONFIDENTIALITY OF REPORTS. The Trust acknowledges and agrees that the
format of the reports provided by BISYS to the Trust in connection with the
Services may be confidential and proprietary to the provider of the Licensed
System and/or BISYS, and that the transaction data contained therein may be
confidential and proprietary to Intermediaries. The Trust hereby agrees to treat
such reports and information therein as confidential, shall hold such
information in strict confidence using at least the same degree of care it uses
to protect its own confidential information, and shall not use or disclose such
information except for purposes of complying with the Rule. The Trust shall
limit its use of and access to such information to only those of its employees,
agents and representatives whose responsibilities require such use and access,
shall advise all of such employees, agents and representatives of the
confidential nature of the information and the restrictions imposed by this
Agreement, and shall require them to abide with such restrictions. The Trust
shall be responsible for any breach of this Agreement by its employees, agent or
representatives.
37. INTERPRETATION. This Schedule 3 supplements and modifies the terms of
the Primary Agreement. To the extent there is a conflict between the terms of
the Primary Agreement and this Schedule 3 as it relates to this Agreement, this
Schedule 3 shall control.
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