EXHIBIT (h)(1)
DATA ACCESS SERVICES AGREEMENT
This Data Access Services Agreement is a supplement to that certain
Custodian Contract dated June 21, 1995 between the undersigned each of the Funds
listed on Appendix A of the Custodian Contract (the "Customer") and State Street
Bank and Trust Company ("State Street").
PREAMBLE
WHEREAS, the Customer desires the ability to access certain
Customer-related data ("Customer Data") maintained by State Street on data bases
under the control and ownership of State Street ("Data Access Services"); and
WHEREAS, State Street agrees to grant the Customer such access to the
Customer Data as is consistent with the policy and standards issued from time to
time by State Street.
NOW THEREFORE, the parties agree as follows:
1. Services
A. State Street maintains Customer Data within its proprietary data base
system. State Street agrees to provide the Customer with certain Data Access
Services as provided herein and in the Data Access operating procedures as may
be issued from time to time.
B. Customer agrees to use the Data Access Services solely for its internal
use and benefit and not for resale or other transfer or disposition to, or use
by or for the benefit of any other person or organization without the prior
written approval of State Street. Customer agrees to comply with user
identification and other password control requirements and other security
procedures as may be issued from time to time by State Street.
2. Proprietary Information
Customer acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to Customer by State Street as part of the Data Access
Services constitute copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to State Street.
Customer agrees to treat all Proprietary Information as proprietary to State
Street and further agrees that it shall not divulge any Proprietary Information
to any person or organization except as may be provided hereunder. Without
limiting the foregoing, Customer agrees for itself and its employees and agents:
(1) to access Customer Data solely from locations as may be designated in
writing by State Street and solely in accordance with State Street's
applicable user documentation;
(2) to refrain from copying or duplicating in any way the Proprietary
Information;
(3) to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained, to
inform State Street in a timely manner of such fact and dispose of such
information in accordance with State Street's instructions;
(4) to refrain from causing or allowing third-party data acquired hereunder
from being retransmitted to any other computer facility or other location,
except with the prior written consent of State Street;
(5) that the Customer shall have access only to those authorized
transactions agreed upon by the parties;
(6) to honor all reasonable written requests made by State Street to
protect at State Street's expense the rights of State Street in Proprietary
Information at common law, under federal copyright law and under other
federal or state law.
Customer's obligation to maintain the confidentiality of the Proprietary
Information shall not apply where such:
(1) was already in Customer's possession prior to disclosure by State
Street, and such was received by Customer without obligation of confidence;
(2) is or becomes publicly available without breach of this Agreement;
(3) is rightly received by Customer from a third party, who is not a
current or former employee, officer, director or agent of State Street,
without obligation of confidence;
(4) is disclosed by Customer with the written consent of State Street; or
(5) is released in accordance with a valid order of a court or governmental
agency.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this section 2. The obligations of this section shall
survive any earlier termination of this agreement.
3. Warranties
If Customer notifies State Street that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, State Street shall endeavor in a timely manner
to correct such failure. Organizations from which State Street may obtain
certain data included in the Data Access Services are solely responsible for the
contents of such data and Customer agrees to make no claim against State Street
arising out of the contents of such third-party data, including, but not limited
to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS,
AS AVAILABLE BASIS. STATE STREET EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. Limitation of Liability
State Street shall not be liable to the Customer for any loss or damage
claimed to have resulted from the use of the Data Access Services except for the
direct loss or damage resulting from the negligence or willful conduct of State
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Street. STATE STREET SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES) IN ANY WAY DUE TO OR ARISING IN CONNECTION WITH CUSTOMER'S USE
OF THE DATA ACCESS SERVICES OR THE PERFORMANCE OF OR FAILURE TO PERFORM STATE
STREET'S OBLIGATIONS UNDER THIS AGREEMENT. This disclaimer applies without
limitation to claims (i) arising from the provision of the Data Access Services,
the delivery, installation, use, maintenance, or removal of State Street
provided equipment, or any failure or delay in connection with any of the
foregoing; (ii) regardless of the form of action, whether in contract, tort
(including negligence), strict liability, or otherwise; and (iii) regardless of
whether such damages are foreseeable. Further, in no event shall State Street be
liable for any claims that arise more than one (1) year prior to the institution
of suit therefor or any claim arising from causes beyond State Street's control.
5. Force Majeure
State Street shall have no liability for cessation of services hereunder or
any damages resulting therefrom to the Customer as a result of work stoppage,
power or other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
6. Exclusive Remedy
In consideration of the fees charged for Data Access Services, if any,
Customer's exclusive recovery with respect to Data Access Services regardless of
the basis of the claims asserted by it against State Street shall not exceed six
(6) times the average monthly fees billed to Customer hereunder and computed by
averaging the monthly billing for each of the twelve months preceding the month
in which the damage or injury is alleged to have occurred, but if this agreement
has not been in effect for twelve months preceding such date, then by averaging
the monthly xxxxxxxx for each of the preceding months that this agreement has
been in effect.
7. Indemnification
The Customer agrees to indemnify and hold State Street free and harmless
from any expense, loss, damage or claim including reasonable attorney's fees,
(collectively "costs") suffered by State Street and caused by or resulting from
(i) the negligence or willful misconduct in the use by the Customer, its
employees or agents, of the Data Access Services or the application software
systems supporting such services, including any costs incurred by State Street
resulting from a security breach at the Customer's location or committed by its
former or present employees or agents and (ii) claims resulting from incorrect
Customer Originated Electronic Financial Instruction.
8. Customer Originated Electronic Financial Instruction ("COEFI")
If the transactions available to Customer include the ability to originate
electronic instructions to State Street in order to (i) effect the transfer or
movement of cash or securities held under custody or (ii) transmit accounting or
other information (such transactions constituting a "COEFI"), then in such event
State Street shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such instruction
is
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undertaken in conformity with security procedures established by State Street
from time to time.
9. Injunctive Relief
In the event of a breach or threatened breach by Customer of Section 1 or 2
hereof, State Street shall be entitled to obtain injunctive relief in addition
to any other remedies available at law or equity.
10. General
10.1 Term of Agreement. This agreement is effective from the date it is
accepted by State Street and shall remain in full force and effect
until terminated as hereinafter provided. Either party may terminate
this agreement for any reason by giving the other party at least
thirty days prior written notice of termination. In addition, either
party may terminate this agreement immediately for failure of the
other party to comply with any material term and condition by giving
the other party written notice of termination. This agreement shall in
any event terminate contemporaneously with the Custodian Contract
applicable hereto.
10.2 Charges. Charges, if any, for Data Access Services shall be as agreed
upon between the parties from time to time.
10.3 Assignment; Successors. This Agreement shall not be assigned by either
party without the prior written consent of the other party, except
that either party may assign to a successor of all or a substantial
portion of its business, or to a party controlling, controlled by, or
under common control with such party.
10.4 Survival. All provisions regarding indemnification, warranty,
liability and limits thereon, and confidentiality and/or protection of
proprietary rights and trade secrets shall survive the termination of
this agreement.
10.5 Consent to Breach not Waiver. No term or provision hereof shall be
deemed waived and no breach excused, unless such waiver or consent
shall be in writing and signed by the party claimed to have waived or
consented. Any consent by any party to, or waiver of, a breach by the
other, whether express or implied, shall not constitute a consent to,
waiver of, or excuse for any other different or subsequent breach.
11. Signatory
The individual signing the agreement represents that he or she is an
authorized officer of the Customer (and, if identified below or on an attached
schedule, such investment manager or other party as may use Data Access Services
with respect to the Customer) so as to cause this agreement to be a valid and
binding obligation upon the Customer (and, if applicable, such other parties as
may be identified on the signature line below or on an attached schedule).
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