TRANSFER AGENT INTERACTIVE CLIENT SERVICES AGREEMENT
AGREEMENT
made
this 1st
day of
August, 2005, (the “Effective Date”) between CornerCap® Group of Funds, a
Massachusetts Business Trust, (the “Fund”), CornerCap Investment Counsel, Inc.,
a Georgia corporation (“CornerCap”), and ALPS Mutual Funds Services, Inc., a
Colorado corporation (“ALPS”). ALPS, the Fund, and CornerCap are collectively
referred to herein as the “Parties” and individually as the
“Party”.
WHEREAS,
the
Fund is an open-end management investment company registered under the
Investment Company Act of 1940, as amended, presently consisting of one
portfolio, having one class of shares, listed in Schedule I attached hereto;
such investment portfolio and any additional investment portfolios that may
be
established by the Fund is referred to herein individually as a “Portfolio” and
collectively as the “Portfolios”; and
WHEREAS,
ALPS is
a provider of transfer agency services to the mutual fund industry utilizing
proprietary and licensed computer software programs to allow shareholders
to
access their account information and real-time transaction processing.
WHEREAS,
CornerCap and the Fund have entered into an administrative services agreement
(the “Services Agreement”) pursuant to which CornerCap provides administrative
and other services to the Funds and certain of said services are commonly
referred to in this Agreement;
WHEREAS,
CornerCap and the Fund desire to utilize ALPS’ Interactive Client Services
(“ICS”) to provide the Fund’s shareholders with access to shareholder account
information and real-time transaction processing capabilities in accordance
with
the terms of this Agreement.
NOW,
THEREFORE,
in
consideration of the foregoing premises, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the
Parties hereby agree as follows.
ARTICLE
I
DEFINITIONS
The
following definitions shall apply to this Agreement. Additional terms may
be
defined in the Agreement and in the exhibits, which describe the ICS to be
provided by ALPS for the Fund.
“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
Controlling, Controlled by or under common Control with such
Person.
“Portfolio(s)”
shall mean the various registered investment companies (mutual funds) which
the
Fund has designated to participate in ICS, and as listed on Schedule 1, attached
hereto.
“Investment
Company Web Site” shall mean the collection of electronic documents or pages
residing on the computer system of an Internet Service Provider (“ISP”) hired by
the Funds connected to the Internet and accessible by hypertext link through
the
World Wide Web, where Persons may view information about the Portfolio and
access the various Transaction screens provided by the Fund.
“Person”
shall mean an individual, corporation, partnership, association, trust or
other
entity or organization, including a government or political subdivision or
an
agency or instrumentality thereof.
“Security
Procedures” shall mean the procedures, including the use of encryption
technology, implemented for purposes of protecting the integrity,
confidentiality or secrecy of, and the unauthorized interception, corruption,
use of, or access to, any data or information transmitted via ICS.
“Transactions”
shall mean account inquiries, purchases, redemptions through Automated Clearing
House, fed wire, or check to the address of record for the Portfolio account,
exchanges and other transactions offered through ICS.
“User(s)”
shall mean record owners or authorized agents of record owners of shares
of a
Portfolio, including brokers, investment advisors and other financial
intermediaries.
ARTICLE
II
USE
OF ICS BY THE FUNDS
Section
2.1 Selection
of ICS,
ALPS
will perform, and CornerCap and the Fund have selected, the ICS services
described on Exhibit A-1 attached to this Agreement.
Section
2.2 Responsibilities
of ALPS.
During
the Term and subject to the provisions of this Agreement, ALPS shall, at
its
expense (unless otherwise provided for herein): (i) provide, or hire other
Persons to provide, all computers, telecommunications equipment and other
equipment and software reasonably necessary to develop and maintain the ICS;
and
(ii) deliver a monthly billing report to the Funds, which shall include a
report
of Transactions, by type, processed through ICS.
Section
2.3 Responsibilities
of the Funds. During
the Term and subject to the provisions of this Agreement, the Funds shall
at
their expense (unless otherwise provided for herein) fulfill the Funds
obligations, if any, set forth in this Agreement.
Section
2.4 Change
in Designated Portfolios.
Upon
thirty (30) days prior notice to ALPS, the Fund may change the Portfolios
designated to participate in ICS by delivering to ALPS, in writing, a revised
list of participating Portfolios.
Section
2.5 Scope
of ALPS’ Obligations.
ALPS
shall at all times use reasonable commercial efforts in performing ICS under
this Agreement. In the absence of willful
misconduct,
knowing violations of applicable law, reckless disregard of its duties
under
this Agreement, or negligence on its part in the performance of ICS, ALPS
shall
not be liable for any loss or damage suffered in connection with the use
of the
ICS under this Agreement. With respect to those actions or services delineated
in Exhibit A-1 and all other instructions given to ALPS by the Fund, ALPS
shall
be presumed to have exercised reasonable commercial efforts if it has acted
in
accordance with Exhibit A-1 and other instructions provided by the Fund.
With
respect to any claims for losses, damages, costs or expenses which may
arise
directly or indirectly from Security Procedures which ALPS has implemented
or
omitted, ALPS shall be presumed to have used reasonable commercial efforts
if it
has followed, in all material respects, at least those Security Procedures
described in Exhibit B-1 to this Agreement. ALPS may, but shall not be
required
to, modify such Security Procedures from time to time to the extent it
believes,
in good faith, that such modifications will enhance the security of ICS.
All
data and information transmissions via ICS are for informational purposes
only,
and are not intended to satisfy regulatory requirements or comply with
any laws,
rules, requirements or standards of any federal, state or local governmental
authority, agency or industry regulatory body, including the securities
industry, which compliance is the sole responsibility of the Fund. The
Fund
acknowledge and agree that their Users are responsible for verifying the
accuracy and receipt of all data or information transmitted via ICA. The
Fund is
responsible for advising their Users of their responsibility for promptly
notifying the Portfolio’s transfer agent of any errors or inaccuracies relating
to shareholder data or information transmitted via ICS.
ARTICLE
III
FEES
As
consideration for the performance by ALPS of the ICS, the Fund will pay ALPS
the
fees as set forth on Exhibit C-1 to this Agreement.
ARTICLE
IV
PROPRIETARY
RIGHTS
Section
4.1 ALPS’ Property. The Fund 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 ALPS. Any software
ALPS provides to the Fund pursuant to this Agreement shall be used by the
Fund
only during the term of this Agreement and only in accordance with the
provisions of this Agreement to provide connectivity to and through ALPS,
and
shall not be used by the Fund to provide connectivity to or through any other
system or Person. Any interfaces and software developed by ALPS shall not
be
used to connect the Fund to any transfer agency system or any other Person
without ALPS’ prior written approval. Except with ALPS’ consent or in conformity
with Federal copyright laws, the Fund shall not copy, decompile or reverse
engineer any software provided to the Fund by ALPS. The Funds also agree
not to
take any action which would mask, delete or otherwise alter any of ALPS’
on-screen disclaimers and copyright, trademark and service xxxx notifications
provided by ALPS, in writing, from time to time, or any “point and click”
features relating to User acknowledgment and acceptance of such disclaimers
and
notifications.
Section
4.2 Investment
Company Web Site.
The web
pages that make up the Investment Company Web Site contain intellectual
property, including, but not limited to, copyrighted works, trademarks, and
trade dress, that is the property of the Fund. The Fund retains all rights
in
the intellectual property that resides on the Investment Company Web Site,
not
including any intellectual property provided by or otherwise obtained from
ALPS.
To the extent that the intellectual property of the Fund is duplicated within
the ALPS Web Site to replicate the “look and feel,” trade dress or other aspect
of the appearance or functionality of the Investment Company Web Site, the
Fund
grants to ALPS a non-exclusive, non-transferable license to such intellectual
property for the duration of this Agreement. This license is limited to the
intellectual property of the Fund needed to replicate the appearance of the
Investment Company Web Site and does not extend to any other intellectual
property owned by the Fund.
Section
4.3 IP
Warranty.
Except
with respect to the design and graphical elements and Web pages provided
to ALPS
by the Fund, ALPS warrants to the Fund that ALPS
owns or
has sufficient license or other legal rights in all software and intellectual
property used by ALPS at its facilities to provide the ICS, and such use
by ALPS
does not infringe or otherwise violate the U.S. copyrights of any other party.
In the event one or more ICS’ are not useable by Customer as a result of a
breach of the foregoing warranty, then ALPS will use reasonable commercial
efforts to: (a) procure for the Funds the right to continue using the ICS
or
infringing portion thereof, or (b) modify the ICS so that it becomes
non-infringing but has substantially the same capabilities, or (c) replace
the
ICS or infringing part thereof by other systems of similar capability within
a
reasonable period of time under the circumstances. If ALPS is not able to
satisfy the foregoing requirements, then, as the sole remedy, Fund will be
entitled to terminate this Agreement immediately.
ARTICLE
V
TERM
AND TERMINATION
Section
5.1 Term.
This
Agreement shall be effective as of the Effective Date and shall continue
in full
force and effect for 3 years following the Effective Date (the “Initial Term”).
This Agreement shall automatically renew at the end of the Initial Term for
additional, successive twelve (12)-month terms (each, a “Renewal Term”) unless
terminated by either party on not less than sixty (60) days prior written
notice
to the other party. The Initial Term and any Renewal Term(s) are referred
to
herein as the Term.
Section
5.2 Termination.
Throughout the Term, either Party shall have the right to terminate this
Agreement on written notice to the other Party of the other Party’s material
breach of this Agreement and such Party’s failure to cure such breach within
thirty (30) days. This Agreement shall automatically terminate upon the
termination of the Transfer Agency Agreement between CornerCap, the Fund
and
ALPS.
Section
5.3 Effect
of Termination.
In the
event of a termination under the provisions of this Article V, the Parties
will
have no continuing obligations to one another other than the obligation to
return to one another the confidential or proprietary materials of the other
in
their possession.
ARTICLE
VI
INDEMNIFICATION;
LIABILITY LIMITATIONS
Section
6.1 No
Other Warranties.
Except
as otherwise expressly stated in section 2.5 of this Agreement, the ICS and
all
software and systems described in this Agreement and its Exhibits are provided
“as-is,” on an “as available” basis, and ALPS hereby specifically disclaims any
and all representations or warranties, express or implied, regarding services
provided by ALPS hereunder, including any implied warranty of title,
merchantability or fitness for a particular purpose and implied warranties
arising from course of dealing or course of performance.
Section
6.2 Limitation
of Liability.
Under
no circumstances shall ALPS be liable for indirect, incidental, consequential,
special, exemplary or punitive damages (even if ALPS has been advised of
or has
foreseen the possibility of such damages), arising from the use or inability
to
use the ICS or under any provision of this Agreement, such as, but not limited
to, loss of revenue or anticipated profits or lost business. Without limiting
any of the foregoing terms of this Section, in no event shall ALPS be liable
under this Agreement in tort or otherwise for an amount exceeding the aggregate
fees actually received by ALPS pursuant to Article III during the most recent
Term of this Agreement.
Section
6.3 Indemnity.
CornerCap and the Funds hereby indemnify and hold ALPS harmless from, and
shall
defend it against any and all claims, demands, costs, expenses and other
liabilities, including reasonable attorneys’ fees, arising in connection with
the use of, or inability to use, the ICS by any User, except to the extent
such
liabilities result directly from the negligence or intentional misconduct
of
ALPS in the performance of the ICS.
ARTICLE
VII
CONFIDENTIALITY
Section
7.1 Confidential
Information.
Each of
the Parties hereby acknowledges that in the course of performing its obligations
hereunder, the other may disclose to it certain information and know-how
of a
technical, financial, operational or other sort, that is nonpublic and otherwise
confidential or proprietary to the disclosing Party. This Agreement, and
in
particular, all ALPS’ Security Procedures and fee schedules, shall be considered
confidential and proprietary. Each Party acknowledges that any such proprietary
or confidential information disclosed to it is of considerable commercial
value
and that the disclosing Party would likely be economically or otherwise
disadvantaged or harmed by the direct or indirect use or disclosure thereof,
except as specifically authorized by the disclosing Party. Each Party therefore
agrees to keep in strict confidence all such information that may from time
to
time be disclosed to it, and agrees not to use such information except as
expressly permitted hereby or to disclose such information to any third Party
for any purpose without the prior consent of the other. The
provisions
of this Section 7.1 shall not apply to any information if and to the extent
it
was (i) independently developed by the receiving Party as evidenced by
documentation in such Party’s possession, (ii) lawfully received by it free of
restrictions from another source having the right to furnish the same,
(iii)
generally known or available to the public without breach of this Agreement
by
the receiving Party or (iv) known to the receiving Party free of restriction
at
the time of such disclosure. The Parties agree that immediately upon termination
of this Agreement, without regard to the reason for such termination, the
Parties shall forthwith return to one another all written materials and
computer
software, which are the property of the other Party.
Section
7.2 Specific
Performance.
Each of
the Parties agrees that the non-breaching Party would not have an adequate
remedy at law in the event of the other Party’s breach or threatened breach of
its obligations under Section 7.1, and that the non-breaching Party would
suffer
irreparable injury and damage as a result of any such breach. Accordingly,
in
the event either Party breaches or threatens to breach the obligations set
forth
in Section 7.1, in addition to and not in lieu of any legal or other remedies
such Party may pursue hereunder or under applicable law, each Party hereby
consents to the granting of equitable relief (including the issuance of a
temporary restraining order, preliminary injunction or permanent injunction)
against it by a court of competent jurisdiction, without the necessity of
proving actual damages or posting any bond or other security therefore,
prohibiting any such breach or threatened breach. In any proceeding upon
a
motion for such equitable relief, a Party’s ability to answer in damages shall
not be interposed as a defense to the granting of such equitable
relief.
ARTICLE
VIII
FORCE
MAJEURE
The
Fund
and CornerCap acknowledge that the Internet is an insecure, unstable,
unregulated, unorganized and unreliable environment, and that the ability
of
ALPS to deliver ICS is dependent upon the Internet and equipment, software,
systems, data and services provided by various telecommunications carriers,
equipment manufacturers, firewall providers and encryption system developers
and
other vendors and third parties. ALPS shall not be liable for any delays
or
failures to perform any of its obligations hereunder to the extent that such
delays or failures are due to circumstances beyond its reasonable control,
including acts of God, strikes, riots, acts of war, power failures, functions
or
malfunctions of the Internet, telecommunications services, firewalls, encryption
systems and security devices, or governmental regulations imposed after the
date
of this Agreement.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Governing
Law; Jurisdiction.
This
Agreement shall be interpreted, construed and enforced in all respects in
accordance with the laws of the state of Colorado, without reference to the
conflict of laws provisions thereof.
Section
9.2 Headings.
Headings used herein are for convenience of reference only, and shall not
be
used in the construction or interpretation hereof.
Section
9.3 Counterparts:
This
Agreement may be executed in counterparts, all of which together shall be
deemed
one and the same Agreement.
Section
9.4 Parties’
Independent Contractors.
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 of authority to bind
or
obligate the others in any manner not expressly set forth herein.
Section
9.5 Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby unless either
of
the Parties shall, in its reasonable determination, conclude that it shall
be
materially prejudiced by such holding of invalidity, illegality or
unenforceability, in which case such Party may terminate this Agreement by
thirty (30) days written notice to the other.
Section
9.6 No
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.
Section
9.7 Assignment.
Neither
this Agreement nor all or any of the rights and obligations of either Party
hereunder shall be assigned, whether by agreement or by operation of law
to any
Person other than an Affiliate of the assigning Party, without the prior
written
consent of the other Party, and any attempt to do so shall be void. No such
permitted assignment shall relieve the assigning Party of its obligations
under
this Agreement. This Agreement shall be binding upon and inure to the benefit
of
the respective successors, permitted assigns and legal representatives of
the
Parties hereto.
Section
9.8 Notices.
All
notices, requests or communications required hereunder shall be in writing
and
shall be deemed to have been duly given (i) upon delivery, if delivered
personally against written receipt, (ii) three (3) days after posting by
certified mail, postage prepaid, return receipt requested, (iii) upon confirmed
receipt, if delivered by telecopier or (iv) the next day if delivered by
a
recognized overnight commercial courier, such as Federal Express or Airborne,
addressed in each instance to the Parties at the addresses set forth below
or at
such other addresses as shall be given by either of the Parties to the other
in
accordance with this Section 9.8.
| a. |
if
to the Fund at:
|
| The Peachtree Street, N.E., Suite 1770 |
| 0000 Xxxxxxxxx Xxxxxx |
| Xxxxxxx, XX 00000 |
| Attn: |
| Fax: |
| b. |
if
to CornerCap at:
|
| The Peachtree, Suite 1770 |
| 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000 |
| Xxxxxxx, XX 00000 |
| Attn: |
| Fax: |
| c. |
if
to ALPS at:
|
| 0000 Xxxxxxxx, Xxxxx 0000 |
| Xxxxxx, Xxxxxxxx, 00000 |
| Fax: 000.000.0000 |
| Attn: General Counsel |
Section
9.9 Entire
Agreement.
This
Agreement and its Exhibits together constitute the complete understanding
and
agreement of the Parties with respect to the subject matter hereof, and shall
supersede all prior communications with respect thereto. They may not be
modified, amended or in any way altered, except in a writing signed by both
Parties. No agent of any Party hereto is authorized to make any representation,
promise or warranty inconsistent with the terms hereof.
IN
WITNESS WHEREOF,
the
Parties hereto have set their hands by their authorized representatives as
of
the year and date first written above.
CORNERCAP
INVESTMENT COUNSEL, INC.
By:
Name: Xxxxxx
X.
Xxxxx
Title: Chief
Executive Officer
CORNERCAP
GROUP OF FUNDS
By:
Name: Xxxxxx
X.
Xxxxx
Title: President
ALPS
MUTUAL FUNDS SERVICES, INC.
By:
Name: Xxxxxx
X.
May
Title: Senior
Vice President
SCHEDULE
1
LIST
OF PORTFOLIOS
CornerCap®
Balanced Fund
CornerCap®
Small-Cap Value Fund
CornerCap®
Contrarian Fund
