EXHIBIT NO. (h) (35)
INTERNET ACCESS AGREEMENT
This Internet Access Agreement is among Firstar Trust Company ("FTC"), Firstar
Funds, Inc. ("Customer"), and Firstar Investment Research & Management Company,
LLC ("Customers Adviser") and is entered into this _______ day of April, 1998.
RECITAL
--------
Customer desires to purchase from FTC, and FTC wishes to sell to customer, those
electronic interactive transaction processing services described on Schedule I
attached hereto (collectively, the "Services") that Customer my select, from
time to time, for use by its shareholders ("End Users'") to make inquiries and
perform transactions to their account(s) with the mutual funds listed on Exhibit
A hereto and such other funds as Customer and FTC shall mutually agree from time
to time (each a "Fund").
AGREEMENT
---------
1. TERM; RENEWAL; TERMINATION
---------------------------
1.1 The initial term of this Agreement shall be for a period commencing on the
date that the Services are first provided and ending one year from that
date.
1.2 This Agreement shall automatically renew for subsequent periods of one (1)
year each unless either party shall elect not to renew the Agreement by
providing written notice of nonrenewal to the other party at least ninety
(90) days prior to the expiration of any term.
1.3 Customer may terminate this Agreement at any time (a) upon providing ninety
(90) days prior written notice of termination to FTC or (b) immediately by
written notice to FTC in the event that (i) FTC is no longer serving as the
Customer's transfer agent, (ii) Customer determines that amendments to
procedures provided to it under Section 3.5 are unacceptable to Customer or
(iii) Customer determines to terminate this Agreement as permitted under
Section 7.2. Termination of this Agreement prior to the expiration of any
term not entitle Customer to a rebate of any Annual Maintenance Fee
previously paid unless termination is pursuant to this section 1.3(b).
2. CHARGES
-------
Customer agrees to pay the fees and other charges set forth on Schedule 2
attached hereto.
3. RESPONSIBILITIES OF FTC
------------------------
3.1 FTC will use its best reasonable efforts to cause the Services to be
available 24 hours a day, 7 days a week, subject to scheduled maintenance
and downtime. FTC will use its best efforts to not schedule routine
maintenance during the hours of 8:00 a.m. to 3:00 p.m. Central Time.
3.2 FTC will issue to each End User who desires to use the Services a unique
personal identification number (PIN) for authentication purposes, which may
be changed upon End User's reasonable request in accordance with policies
to be determined by FTC and Customer. FTC will require an End User to
provide his/her PIN in order to access the Services.
3.3 FTC will provide the End User with a transaction confirmation number for
each completed purchase, redemption, or exchange of mutual fund shares.
3.4 FTC will utilize encryption and secure transport protocols intended to
prevent fraud and ensure confidentiality of End User accounts and
transactions. In no event shall FTC use encryption weaker than 40-bit RC4
Stream. FTC will take reasonable actions to protect the Internet website
which provides the Services and its related network against viruses, worms
and other data corruption or disabling devices, and unauthorized,
fraudulent or illegal use by using appropriate virus detection and
destructive software and by adopting such other security procedures as may
be necessary.
3.5 FTC will establish and provide to Customer written procedures, which may be
amended from time to time by FTC with the written consent of Customer,
regarding End User access to the Services. The current procedures are
attached to this Agreement. Such written procedures shall establish
security standards for the Services, including, without limitation:
(a) Encryption/secure transport protocols.
(b) End User lockout standards (e.g., lockout after three
unsuccessful attempts to gain access to the Services).
(c) PIN issuance and reissuance standards.
(d) Access standards, including limits on access to End Users whose
accounts are coded for privilege.
(e) Automatic logoff standards (e.g., if the session is inactive for
longer than 15 minutes).
3.6 FTC will provide Customer and Customer's Adviser with daily reports of
transactions listing all purchases or transfers made by each End User
separately. FTC shall also furnish Customer and Customer's Adviser with
monthly reports summarizing activity without listing all transactions.
3.7 FTC will annually engage a third party to audit its internal controls for
the services and will provide Customer and Customer's Adviser with a copy
of the auditor's report promptly.
3.8 FTC WARRANTS AND REPRESENTS THAT IT WILL PERFORM THE SERVICES AS DESCRIBED
IN SCHEDULE I AND/OR ANY OTHER DOCUMENTATION PROVIDED TO CUSTOMER BY FTC.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED
BY FTC "AS IS" WITHOUT WARRANTY OF ANY KIND AND FTC EXPRESSLY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. FTC WILL PROMPTLY NOTIFY CUSTOMER OF ANY PROBLEMS OR
ERRORS WITH THE SERVICES OF WHICH FTC BECOMES AWARE.
4. RESPONSIBILITIES OF CUSTOMER
----------------------------
Customer assumes exclusive responsibility for the consequences of any
instructions it may give to FTC, for Customer's or its End User's failure
to properly access the Services in the manner prescribed by FTC, and for
Customer's failure to supply accurate information to FTC.
5. RESPONSIBILITIES OF CUSTOMER'S ADVISER
--------------------------------------
5.1 Customer's Adviser shall be responsible to maintain one or more web sites
through which End Users may access the Services. Customer's Adviser shall
provide FTC with the name of the host of Customer's web site server and
shall notify FTC of any change to Customer's web site server host.
5.2 Customer's Adviser shall provide FTC with such information and/or access to
each Fund's web site(s) as is necessary for FTC to provide the Services to
End Users.
5.3 Customer's Adviser shall promptly notify Customer and FTC of any problems
or errors with the Services reported by End Users.
6. FILE SECURITY AND RETENTION; CONFIDENTIALITY
---------------------------------------------
6.1 FTC and its agents will provide reasonable security provisions to ensure
that third parties do not have access to Customer's data bases, files, and
other information provided by Customer to FTC for use with the Services, or
to End User transaction or account data (collectively "Customer Files").
FTC's security provisions for Customer and Customer's End Users will be no
less protective than FTC's security provisions with respect to its own
proprietary information. FTC agrees that any and all Customer Files
maintained by FTC for Customer pursuant to this Agreement shall be
available for inspection by Customer's regulatory authorities during
regular business hours, upon reasonable prior written notice to FTC and
will be maintained and retained in accordance with applicable requirements
of the Investment Company Act of 1940. Except in the normal course of
business and in conformity with Federal copyright law or with Customer's
consent, FTC shall not copy, decompile or reverse engineer any software
provided to FTC by Customer. FTC will take such actions as are necessary
to protect the intellectual property contained within the Customer's
website or any software, written materials, or pictorial materials
describing or creating the Customer's website, including all interface
designs or specifications. The Customer grants FTC a non-exclusive license
for the duration of this Agreement to copy the appearance of the Customer's
website interface for the limited purpose of emulating the look and feel of
that website. Such emulation is solely for the purpose of ensuring
seamless integration between the Customer's website and the website on
which the Services will be provided. FTC will take such actions as are
necessary to protect all rights to the source code and interface of
Customer's website.
6.2 FTC agrees, in accordance with its own policies used to protect its own
information of similar confidentiality, to use its best reasonable efforts
to refrain from and prevent the use or disclosure of any confidential
information of the Customer, except when such use or disclosure is for the
purpose of providing the Services. Without limiting the foregoing, FTC
will not use, or permit the use of, names of End Users for the purpose of
soliciting any business, product, or service whatsoever except where the
communication is necessary and appropriate for FTC's delivery of the
Services.
FTC shall treat as confidential and not disclose or otherwise make
available any of the customer lists, customer information, trade secrets,
processes, proprietary data, information or documentation of Customer
(collectively the "confidential Information"), in any form, to any person
other than agents, employees or consultants of FTC. FTC will instruct its
agents, employees and consultants who have access to the Confidential
Information to keep such information confidential by using the same care
and discretion that FTC uses with respect to its own confidential property
and trade secrets. Upon the termination of this Agreement for any reason
and upon Customer's request, FTC shall return to Customer, or destroy and
certify to Customer that it has destroyed, any and all copies of
Confidential Information which are in its possession.
FTC will not have an obligation of confidentiality under this Paragraph 6.2
with regard to information that (1) was known to it prior to disclosure
under this Agreement, (2) is or becomes publicly available other than as a
result of a breach of this Agreement, (3) is disclosed to it by a third
party not subject to a duty of confidentiality or (4) is required to be
disclosed under law or by order of court or governmental agency.
7. LIMITED LIABILITY; INDEMNIFICATION
----------------------------------
7.1 Subject to Section 3.1, FTC cannot and does not guarantee availability of
the Services. Accordingly, FTC's sole liability to Customer or any third
party (including End Users) for any claims, notwithstanding the form of
such claims (e.g., contract, negligence, or otherwise), arising out of the
delay of or interruption in the Services provided or to be provided by FTC
hereunder shall be to use its best reasonable efforts to commence or resume
the Services as promptly as is reasonably possible.
7.2 FTC shall, at its sole cost and expense, defend, indemnify, and hold
harmless Customer, its affiliates, their respective assigns, and their
respective officers, directors, employees, agents, and servants, from and
against any and all claims, actions, suits, proceedings, costs, expenses,
damages and liabilities, including without limitation, reasonable
attorneys' fees and expenses arising out of or relating to (a) any
infringement, or claim of infringement, of any United States patent,
trademark, copyright, trade secret, or other proprietary rights based on
the use or potential use of the Services, (b) FTC's negligence, intentional
wrongful acts and willful misconduct in the performance of its services
hereunder, and (c) the provision of confidential information of any End
User to a person other than a person who has provided proper identification
for such End User as specified in Section 3.2. This indemnity shall
continue in full force and effect, notwithstanding the termination of this
Agreement.
If an injunction shall be obtained against Customer's use of the Services
by reasons of infringement of a patent, copyright, trademark, or other
proprietary rights of a third party, FTC shall, at its own option and
expense, either (i) procure for Customer the right to continue to use the
Services on substantially the same terms and conditions as specified in
this Agreement, or (ii) after notification to Customer, replace or modify
the Services so that they become noninfringing, provided that, in
Customer's sole judgment, such replacement or modifications does not
materially and adversely affect the performance of the Services or
significantly lessen their utility to Customer. If in Customer's sole
judgment, such replacement or modification does materially adversely affect
the performance of the Services or significantly lessen their utility to
Customer, Customer may terminate this Agreement immediately on notice to
FTC.
7.3 Each party hereto shall be excused from performance hereunder for any
period and to the extent that it is prevented from performing any services
pursuant hereto, in whole or in part, as a result of unforeseen events
beyond the control and without fault or negligence of the party including,
without limitation, delays caused by the other party or an act of God, war,
civil disturbance, court order, labor dispute or third party
nonperformance, and such nonperformance shall not be a default hereunder or
grounds for termination hereof so long as the nonperforming party shall
undertake all reasonable efforts to rectify the situation that is the cause
of the nonperformance.
7.4 FTC shall not be responsible for the accuracy of input material nor the
resultant output derived from inaccurate input. The accuracy of input and
output shall be judged as received at FTC's data center as determined by
the records maintained by FTC.
7.5 IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR SPECIAL, INCIDENTAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES WHICH THE OTHER PARTY MAY INCUR OR
EXPERIENCE ON ACCOUNT OF ENTERING INTO, RELYING ON, OR PERFORMING THIS
AGREEMENT, REGARDLESS OF WHETHER THE DAMAGES ARE FOUNDED IN CONTRACT,
NEGLIGENCE, OR OTHER FORM OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS, LOST BUSINESS,
OR LOST GOODWILL OF THE OTHER PARTY.
8. NOTICES
-------
All notices hereunder shall be in writing and shall be sent, if to FTC, to
000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000; if to Customer, to Firstar
Funds, Xxxxx Center 1 W, 000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and
if to Customer's Adviser, to Firstar Investment Research and Management
Company, LLC, 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
9. MISCELLANEOUS
-------------
This Agreement shall be governed and construed according to the internal
laws of the State of Wisconsin, excluding conflicts of law rules. This
Agreement may not be assigned by either party without the prior written
consent of the other party. No waiver of any right or obligation hereunder
shall be effective unless in writing and signed by the waiving party. If
any provision of this Agreement (or any portion thereof) shall be held to
be invalid, illegal, or unenforceable, the validity, enforceability, or
legality of the remainder of the Agreement shall not in any way be affected
or impaired thereby.
FIRSTAR TRUST COMPANY FIRSTAR FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx Xxxxxx
-------------------------------- --------------------------------
Title: Senior Vice President Title: Vice President
-------------------------------- --------------------------------
AGREED to the provisions in paragraph 5.
FIRSTAR INVESTMENT RESEARCH &
MANAGEMENT COMPANY, LLC
By: /s/ J. Xxxxx Xxxxxxxx
--------------------------------
Title: Chairman
--------------------------------
