TRANSFER AGENCY AND SERVICE AGREEMENT
Exhibit (h)(3)
THIS
AGREEMENT is made as of the 4th day of February 2016, by and between STATE STREET BANK AND
TRUST COMPANY, Massachusetts trust company having its principal office and place of business at Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (“State Street” or the “Transfer Agent”), and JANUS
DETROIT STREET TRUST, a Delaware statutory trust having its principal office and place of business at
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the “Trust”).
WHEREAS, the Trust is authorized to issue shares of beneficial interest (“Shares”) in separate
series, with each such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Trust intends to initially offer Shares in one or more series, each as named in
the attached Schedule A, which may be amended by the parties from time to time (such
series, together with all other series subsequently established by the Trust and made subject to
this Agreement in accordance with Section 12 of this Agreement, being herein referred to as a
“Portfolio,” and collectively as the “Portfolios”);
WHEREAS, each Portfolio will issue and redeem Shares only in aggregations of Shares known as
“Creation Units” as described in the currently effective prospectus and statement of additional
information of the Trust (collectively, the “Prospectus”);
WHEREAS, only those entities (“Authorized Participants”) that have entered into an Authorized
Participant Agreement with the distributor of the Trust, currently
ALPs Distributors, Inc. (the
“Distributor”), are eligible to place orders for Creation Units with the Distributor;
WHEREAS, the Depository Trust Company, a limited purpose trust company organized under the
laws of the State of New York (“DTC”) or its nominee will be the record or registered owner of all
outstanding Shares;
WHEREAS, Trust desires to appoint Transfer Agent to act as its transfer agent, dividend
disbursing agent and agent in connection with certain other activities; and Transfer Agent is
willing to accept such appointment.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto,
agree as follows:
1. | TERMS OF APPOINTMENT |
1.1 | Subject to the terms and conditions set forth in this Agreement, the Trust and
each Portfolio hereby employs and appoints the Transfer Agent to act as, and the
Transfer Agent agrees to act as, transfer agent for the Creation Units and dividend
disbursing agent of the Trust and each Portfolio. |
1.2 | Transfer Agency Services. In accordance with procedures established from time
to time by agreement between the Trust and each Portfolio, as applicable, and the
Transfer Agent, the Transfer Agent shall: |
(i) | establish each Authorized Participant’s account in the
applicable Portfolio on the Transfer Agent’s recordkeeping system and maintain
such account for the benefit of such Authorized Participant; |
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(ii) | receive and process orders for the purchase of Creation Units
from the Distributor or the Trust, and promptly deliver payment and appropriate
documentation thereof to the custodian of the applicable Portfolio as
identified by the Trust (the “Custodian”); |
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(iii) | generate or cause to be generated and transmitted confirmation
of receipt of such purchase orders to the Authorized Participants and, if
applicable, transmit appropriate trade instruction to the National Securities
Clearance Corporation (“NSCC”); |
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(iv) | receive and process redemption requests and redemption
directions from the Distributor or the Trust and deliver the appropriate
documentation thereof to the Custodian; |
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(v) | with respect to items (i) through (iv) above, the Transfer
Agent may execute transactions directly with Authorized Participants; |
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(vi) | at the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or cause to be
paid over in the appropriate manner such monies, if any, to the redeeming
Authorized Participant as instructed by the Distributor or the Trust ; |
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(vii) | prepare and transmit by means of DTC’s book-entry system
payments for any dividends and distributions declared by the Trust on behalf of
the applicable Portfolio; |
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(viii) | record the issuance of Shares of the applicable Portfolio and maintain a
record of the total number of Shares of each Portfolio which are issued and
outstanding; and provide the Trust on a regular basis with the total number of
Shares of each Portfolio which are issued and outstanding but Transfer Agent
shall have no obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares to determine if there are authorized Shares available
for issuance or to take cognizance of any laws relating to, or corporate
actions required for, the issue or sale of such Shares, which functions shall
be the sole responsibility of the Trust and each Portfolio; and, excluding DTC
or its nominee as the record or registered owner, the Transfer Agent shall have
no obligations or responsibilities to account for, keep records of, or
otherwise related to, the beneficial owners of the Shares; |
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(ix) | maintain and manage, as agent for the Trust and each Portfolio,
such bank accounts as the Transfer Agent shall deem necessary for the
performance of its duties under this Agreement, including but not limited to,
the processing of Creation Unit purchases and redemptions and the payment of a
Portfolio’s dividends and distributions. The Transfer Agent may maintain such
accounts at the bank or banks deemed appropriate by the Transfer Agent in
accordance with applicable law; |
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(x) | process any request from an Authorized Participant to change
its account registration; and |
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(xi) | except as otherwise instructed by the Trust, the Transfer Agent
shall process all transactions in each Portfolio in accordance with the
procedures mutually agreed upon by the Trust and the Transfer Agent with
respect to the proper net asset value to be applied to purchase orders received
in good order by the Transfer Agent or by the Trust or any other person or firm
on behalf of such Portfolio or from an Authorized Participant before cut-offs
established by the Trust. The Transfer Agent shall report to the Trust any
known exceptions to the foregoing. |
1.3 | Additional Services. In addition to, and neither in lieu of nor in
contravention of the services set forth in Section 1.2 above, the Transfer Agent shall
perform the following services: |
(i) | The Transfer Agent shall perform such other services for the
Trust that are mutually agreed to by the parties from time to time, for which
the Trust will pay such fees as may be mutually agreed upon, including the
Transfer Agent’s reasonable out-of-pocket expenses. The provision of such
services shall be subject to the terms and conditions of this Agreement. |
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(ii) | DTC and NSCC. The Transfer Agent shall: (a) accept and
effectuate the registration and maintenance of accounts, and the purchase and
redemption of Creation Units in such accounts, in accordance with instructions
transmitted to and received by the Transfer Agent by transmission from DTC or
NSCC on behalf of Authorized Participants; and (b) issue instructions to a
Portfolio’s banks for the settlement of transactions between the Portfolio and
DTC or NSCC (acting on behalf of the applicable Authorized Participant). |
1.4 | Authorized Persons. The Trust and each Portfolio, hereby agrees and
acknowledges that the Transfer Agent may rely on the current list of authorized
persons, including the Distributor, as provided or agreed to by the Trust and as may be
amended from time to time, in receiving instructions to issue or redeem Creation Units.
The Trust and each Portfolio, agrees and covenants for itself and each such authorized
person that any order or sale of or transaction in Creation Units received by it after
the order cut-off time as set forth in the Prospectus or such earlier time as
designated by such Portfolio (the “Order Cut-Off Time”), |
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shall be effectuated at the
net asset value determined on the next business day or as otherwise required pursuant
to the applicable Portfolio’s then-effective Prospectus, and the Trust or such
authorized person shall so instruct the Transfer Agent of the proper effective date of
the transaction. |
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1.5 | Anti-Money Laundering and Client Screening. With respect to the Trust’s or any
Portfolio’s offering and sale of Creation Units at any time, and for all subsequent
transfers of such interests, the Trust or its delegate shall, to the extent applicable,
directly or indirectly and to the extent required by law: (i) conduct know your
customer/client identity due diligence with respect to potential investors and
transferees in the Shares and Creation Units and shall obtain and retain due diligence
records for each investor and transferee; (ii) use its best efforts to ensure that each
investor’s and any transferee’s funds used to purchase Creation Units or Shares shall
not be derived from, nor the product of, any criminal activity; (iii) if requested,
provide periodic written verifications that such investors/transferees have been
checked against the United States Department of the Treasury Office of Foreign Assets
Control database for any non-compliance or exceptions; and (iv) perform its obligations
under this Section in accordance with all applicable anti-money laundering laws and
regulations. In the event that the Transfer Agent has received advice from counsel
that access to underlying due diligence records pertaining to the investors/transferees
is necessary to ensure compliance by the Transfer Agent with relevant anti-money
laundering (or other applicable) laws or regulations, the Trust shall, upon receipt of
written request from the Transfer Agent, provide the Transfer Agent copies of such due
diligence records. |
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1.6 | State Transaction (“Blue
Sky”) Reporting. If applicable, the Trust shall be
solely responsible for its “blue sky” compliance and state registration requirements. |
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1.7 | Tax Law. The Transfer Agent shall have no responsibility or liability for any
obligations now or hereafter imposed on the Trust, a Portfolio, any Creation Units, any
Shares, a beneficial owner thereof, an Authorized Participant or the Transfer Agent in
connection with the services provided by the Transfer Agent hereunder by the tax laws
of any country or of any state or political subdivision thereof. It shall be the
responsibility of the Trust to notify the Transfer Agent of the obligations imposed on
the Trust, a Portfolio, the Creation Units, the Shares, or the
Transfer Agent in
connection with the services provided by the Transfer Agent hereunder by the tax law of
countries, states and political subdivisions thereof, including responsibility for
withholding and other taxes, assessments or other governmental charges, certifications
and governmental reporting. |
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1.8 | The Transfer Agent shall provide the office facilities and the personnel
determined by it to perform the services contemplated herein. |
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2. | FEES AND EXPENSES |
2.1 | Fee Schedule. For the performance by the Transfer Agent of services provided
pursuant to this Agreement, the Transfer Agent shall be entitled to receive the fees
and expenses set forth in a written fee schedule. |
3. | REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT |
The Transfer Agent represents and warrants to the Trust that:
3.1 | It is a trust company duly organized and existing under the laws of the Commonwealth of Massachusetts. | ||
3.2 | It is duly registered as a transfer agent under Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), it will remain so
registered for the duration of this Agreement, and it will promptly notify the Trust in
the event of any material change in its status as a registered transfer agent. |
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3.3 | It is duly qualified to carry on its business in the Commonwealth of Massachusetts. | ||
3.4 | It is empowered under applicable laws and by its organizational documents to enter into and perform the services contemplated in this Agreement. | ||
3.5 | All requisite organizational proceedings have been taken to authorize it to enter into and perform this Agreement. | ||
3.6 | It shall provide the office facilities and the personnel determined by it to perform the services contemplated herein. |
4. | REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE PORTFOLIOS |
The Trust and each Portfolio represents and warrants to the Transfer Agent that:
4.1 | The Trust is a statutory trust duly organized, existing and in good standing under the laws of the state of its formation. | ||
4.2 | The Trust is empowered under applicable laws and by its organizational documents to enter into and perform this Agreement. | ||
4.3 | All requisite proceedings have been taken to authorize the Trust to enter into, perform and receive services pursuant to this Agreement. | ||
4.4 | The Trust is registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end management investment company. |
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4.5 | A registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), is currently effective and will remain effective, and all
appropriate state securities law filings have been made and will continue to be made,
with respect to all Shares of the Trust being offered for sale. |
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4.6 | [RESERVED] |
5. | DATA ACCESS AND PROPRIETARY INFORMATION |
5.1 | The Trust acknowledges that the databases, computer programs, screen formats,
report formats, interactive design techniques, and documentation manuals furnished to
the Trust by the Transfer Agent as part of the Trust’s ability to access certain
Trust-related data maintained by the Transfer Agent or another third party on databases
under the control and ownership of the Transfer Agent (“Data Access Services”)
constitute copyrighted, trade secret, or other proprietary information (collectively,
“Proprietary Information”) of substantial value to the Transfer Agent or another third
party. In no event shall Proprietary Information be deemed Authorized Participant
information or the confidential information of the Trust. The Trust and each Portfolio
agrees to treat all Proprietary Information as proprietary to the Transfer Agent 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, the
Trust agrees for itself and its officers and trustees and their agents, to: |
(i) | use such programs and databases solely on the Trust’s, or such
agents’ computers, or solely from equipment at the location(s) agreed to
between the Trust and the Transfer Agent, and solely in accordance with the
Transfer Agent’s applicable user documentation; |
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(ii) | refrain from copying or duplicating in any way the Proprietary Information; | ||
(iii) | refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently obtained, to
inform the Transfer Agent in a timely manner of such fact and dispose of such
information in accordance with the Transfer Agent’s instructions; |
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(iv) | refrain from causing or allowing Proprietary Information
transmitted from the Transfer Agent’s computers to the Trust’s, or such agents’
computer to be retransmitted to any other computer facility or other location,
except with the prior written consent of the Transfer Agent; |
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(v) | allow the Trust or such agents to have access only to those
authorized transactions agreed upon by the Trust and the Transfer Agent; |
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(vi) | honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent’s expense the rights of the Transfer
Agent in |
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Proprietary Information at common law, under federal copyright law and
under other federal or state law. |
5.2 | Proprietary Information shall not include all or any portion of any of the
foregoing items that are or become publicly available without breach of this Agreement;
that are released for general disclosure by a written release by the Transfer Agent; or
that are already in the possession of the receiving party at the time of receipt
without obligation of confidentiality or breach of this Agreement. |
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5.3 | If the Trust notifies the Transfer Agent that any of the Data Access Services
do not operate in material compliance with the most recently issued user documentation
for such services, the Transfer Agent shall endeavor in a timely manner to correct such
failure. Organizations from which the Transfer Agent may obtain certain data included
in the Data Access Services are solely responsible for the contents of such data, and
the Trust agrees to make no claim against the Transfer Agent 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. THE TRANSFER
AGENT 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. |
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5.4 | If the transactions available to the Trust include the ability to originate
electronic instructions to the Transfer Agent in order to effect the transfer or
movement of cash or Creation Units or transmit Authorized Participant information or
other information, then in such event the Transfer Agent shall be entitled to rely on
the validity and authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with security
procedures established by the Transfer Agent from time to time. |
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5.5 | Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section. The obligations of this Section shall survive
any earlier termination of this Agreement. |
6. | RESERVED | |
7. | STANDARD OF CARE / LIMITATION OF LIABILITY |
7.1 | The Transfer Agent shall at all times act in good faith and without negligence
in its performance of all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors, including
encoding and payment processing errors, unless said errors are caused by its
negligence, fraud, bad faith, or willful misconduct or that of its employees or agents.
The parties agree that any encoding or payment processing errors shall be |
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governed by
this standard of care, and that Section 4-209 of the Uniform Commercial Code is
superseded by this Section. |
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7.2 | In any event, the Transfer Agent’s cumulative liability for each calendar year
(a “Liability Period”) with respect to the services provided pursuant to this Agreement
regardless of the form of action or legal theory shall be limited to its total annual
compensation earned and fees payable hereunder during the preceding Compensation
Period, as defined herein, for any liability or loss suffered by the Trust or the
Portfolios including, but not limited to, any liability relating to qualification of
the Trust or a Portfolio as a regulated investment company or any liability relating to
the Trust’s or a Portfolio’s compliance with any federal or state tax or securities
statute, regulation or ruling during such Liability Period. “Compensation Period”
shall mean the calendar year ending immediately prior to each Liability Period in which
the event(s) giving rise to the Transfer Agent’s liability for that period have
occurred. Notwithstanding the foregoing, the Compensation Period for purposes of
calculating the annual cumulative liability of the Transfer Agent for the Liability
Period commencing on the date of this Agreement and terminating on December 31, 2016
shall be the date of this Agreement through December 31, 2016, calculated on an
annualized basis, and the Compensation Period for the Liability Period commencing
January 1, 2017 and terminating on December 31, 2017 shall be the date of this
Agreement through December 31, 2016, calculated on an annualized basis. In no event
shall the Transfer Agent be liable for any special, incidental, indirect, punitive or
consequential damages, regardless of the form of action and even if the same were
foreseeable. |
8. | INDEMNIFICATION |
8.1 | The Transfer Agent shall not be responsible for, and the Trust on behalf of
each Portfolio shall indemnify and hold the Transfer Agent harmless from and against,
any and all losses, damages, costs, charges, reasonable counsel fees (including the
defense of any lawsuit arising from or related to the services provided under this
Agreement in which the Transfer Agent or its affiliate is a named party), payments,
expenses and liability (“Losses”) arising out of or attributable to: |
(i) | all actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith and without negligence, fraud or willful
misconduct; |
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(ii) | the Trust’s breach of any representation, warranty or covenant of the Trust hereunder; | ||
(iii) | the Trust’s lack of good faith, negligence, fraud or willful misconduct; | ||
(iv) | reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on: (a) any
information, records, documents, data, stock certificates or services, which
are received |
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by the Transfer Agent or its agents or subcontractors by machine
readable input, facsimile, electronic data entry, electronic instructions or
other similar means authorized by the Trust, and which have been prepared,
maintained or performed by the Trust or any other person or firm on behalf of
the Trust, including but not limited to any broker-dealer, third party
administrator or previous transfer agent; (b) any instructions or requests of
the Trust or its officers or the Trust’s agents or subcontractors or their
officers or employees; (c) any instructions or opinions of legal counsel to the
Trust or any Portfolio with respect to any matter arising in connection with
the services to be performed by the Transfer Agent under this Agreement which
are provided to the Transfer Agent after consultation with such legal counsel;
or (d) any paper or document, reasonably believed to be genuine, authentic, or
signed by the proper person or persons; |
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(v) | the offer or sale of Creation Units in violation of any
requirement under federal or state securities laws or regulations requiring
that such Creation Units be registered, or in violation of any stop order or
other determination or ruling by any federal or state agency with respect to
the offer or sale of such Creation Units; |
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(vi) | the negotiation and processing of any checks, wires and ACH
transmissions, including without limitation, for deposit into, or credit to,
the Trust’s demand deposit accounts maintained by the Transfer Agent; |
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(vii) | all actions relating to the transmission of Trust, Creation
Unit or Authorized Participant data through the NSCC clearing systems, if
applicable; and |
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(viii) | any tax obligations under the tax laws of any country or of any state or
political subdivision thereof, including taxes, withholding and reporting
requirements, claims for exemption and refund, additions for late payment,
interest, penalties and other expenses (including legal expenses) that may be
assessed, imposed or charged against the Transfer Agent as transfer agent
hereunder. |
8.2 | At any time the Transfer Agent may apply to any officer of the Trust for
instructions, and in consultation with the Trust may consult with legal counsel (which
may be Trust counsel) with respect to any matter arising in connection with the
services to be performed by the Transfer Agent under this Agreement, and the Transfer
Agent and its agents or subcontractors shall not be liable and shall be indemnified by
the Trust and the applicable Portfolio for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. The Transfer
Agent, its agents and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Trust or the applicable
Portfolio, reasonably believed to be genuine and to have been signed by the proper
person or persons, or upon any instruction, |
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information, data, records or documents
provided the Transfer Agent or its agents or subcontractors by machine readable input,
electronic data entry or other similar means authorized by the Trust and the
Portfolios, and shall not be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Trust. |
9. | ADDITIONAL COVENANTS OF THE TRUST AND THE TRANSFER AGENT |
9.1 | Delivery of Documents. The Trust shall promptly furnish to the Transfer Agent the following: |
(i) | A copy of the resolution of the Board of Trustees of the Trust
certified by the Trust’s Secretary authorizing the appointment of the Transfer
Agent and the execution and delivery of this Agreement. |
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(ii) | A copy of the Trust Instrument and By-Laws of the Trust and all
amendments thereto. |
9.2 | Certificates, Checks, Facsimile Signature Devices. The Transfer Agent hereby
agrees to establish and maintain facilities and procedures for safekeeping of any stock
certificates, check forms and facsimile signature imprinting devices; and for the
preparation or use, and for keeping account of, such certificates, forms and devices. |
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9.3 | Records. The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act and the Rules thereunder, the Transfer Agent
agrees that all such records prepared or maintained by the Transfer Agent relating to
the services to be performed by the Transfer Agent hereunder are the property of the
Trust and will be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Trust on and in accordance
with its request. Records may be surrendered in either written or machine-readable
form, at the option of the Transfer Agent. In the event that the Transfer Agent is
requested or authorized by the Trust, or required by subpoena, administrative order,
court order or other legal process, applicable law or regulation, or required in
connection with any investigation, examination or inspection of the Trust by state or
federal regulatory agencies, to produce the records of the Trust or the Transfer
Agent’s personnel as witnesses or deponents, the Trust agrees to pay the Transfer Agent
for the Transfer Agent’s time and expenses, as well as the reasonable fees and expenses
of the Transfer Agent’s counsel, incurred in such production. |
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9.4 | Business Continuity/Disaster Recovery. The Transfer Agent shall take
commercially reasonable steps to minimize service interruptions in the event of
equipment failure, work stoppage, governmental action, communication disruption or
other impossibility of performance beyond the Transfer Agent’s control. The Transfer
Agent shall enter into and shall maintain in effect at all |
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times during the term of
this Agreement with appropriate parties one or more agreements making reasonable
provision for (i) periodic back-up of the computer files and data with respect to the
Fund and (ii) emergency use of electronic data processing equipment as necessary to
provide services under this Agreement. Upon reasonable request, the Transfer Agent
shall discuss with the Trust any business continuity/disaster recovery plan of the
Transfer Agent and/or provide a high-level presentation summarizing such plan. |
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9.5 | Insurance. State Street shall at all times during the term of this Agreement
maintain, at its cost, insurance coverage regarding its business in such amount and
scope as it deems adequate in connection with the services provided by the Transfer
Agent under this Agreement. |
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9.6 | Prospectus and SAI. In performing the services hereunder, the Transfer Agent
shall comply with the applicable provisions of the Trust’s current prospectus(es) and
statement(s) of additional information, and effective amendments thereto, provided the
Trust has promptly provided the Transfer Agent with copies of such material as soon as
they are available and, upon request, copies of any applicable resolutions by the Board
of Trustees of the Trust which relate to the Shares. |
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9.7 | SOC1 Reports. Upon reasonable request of the Trust, the Transfer Agent shall
provide the Trust with a copy of the Transfer Agent’s Service Organizational Control
(SOC) 1 reports prepared in accordance with the requirements of AT section 801,
Reporting on Controls at a Service Organization (formerly Statement on Standards for
Attestation Engagements (SSAE) No. 16). |
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9.8 | Cooperation with Accountants. The Transfer Agent shall reasonably cooperate
with the Trust’s independent public accountants and shall take all reasonable actions
in the performance of its obligations under this Agreement to provide such information,
as may be reasonably requested by the Trust from time to time, to such accountants for
the expression of their opinion. |
10. | CONFIDENTIALITY AND USE OF DATA |
10.1 | All information provided under this Agreement by a party (the “Disclosing
Party”) to the other party (the “Receiving Party”) regarding the Disclosing Party’s
business and operations shall be treated as confidential. Subject to Section 10.2
below, all confidential information provided under this Agreement by Disclosing Party
shall be used, including disclosure to third parties, by the Receiving Party, or its
agents or service providers, solely for the purpose of performing or receiving the
services and discharging the Receiving Party’s other obligations
under the Agreement or
managing the business of the Receiving Party and its Affiliates (as defined in Section
10.2 below), including financial and operational management and reporting, risk
management, legal and regulatory compliance and client service management. The
foregoing shall not be applicable to any information (a) that is publicly available
when provided or thereafter becomes publicly available, other than through a breach of
this Agreement, (b) that is |
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independently derived by the Receiving Party without the
use of any information provided by the Disclosing Party in connection with this
Agreement, (c) that is disclosed to comply with any legal or regulatory proceeding,
investigation, audit, examination, subpoena, civil investigative demand or other
similar process, (d) that is disclosed as required by operation of law or regulation or
as required to comply with the requirements of any market infrastructure that the
Disclosing Party or its agents direct the Transfer Agent or its Affiliates to employ
(or which is required in connection with the holding or settlement of instruments
included in the assets subject to this Agreement), or (e) where the party seeking to
disclose has received the prior written consent of the party providing the information,
which consent shall not be unreasonably withheld. With respect to any disclosure by the
Transfer Agent pursuant to (d) above, the Transfer shall make reasonable efforts to
provide the Trust with reasonable notice prior to any such disclosure unless prohibited
from doing so by law, rule, regulation or regulatory authority. |
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10.2 | (i) In connection with the provision of the services and the discharge of its
other obligations under this Agreement, the Transfer Agent (which term for purposes of
this Section 10.2 includes each of its parent company, branches and affiliates
(“Affiliates”)) may collect and store information regarding the Trust or Portfolio and
share such information with its Affiliates, agents and service providers in order and
to the extent reasonably necessary (i) to carry out the provision of services
contemplated under this Agreement and other agreements between the Trust and the
Transfer Agent or any of its Affiliates and (ii) to carry out management of its
businesses, including, but not limited to, financial and operational management and
reporting, risk management, legal and regulatory compliance and client service
management. |
(ii) Except as expressly contemplated by this Agreement, nothing in this Section
10.2 shall limit the confidentiality and data-protection obligations of the Transfer
Agent and its Affiliates under this Agreement and applicable law. The Transfer
Agent shall cause any Affiliate, agent or service provider to which it has disclosed
Data pursuant to this section 10.2 to comply at all times with confidentiality and
data-protection obligations as if it were a party to this Agreement. |
10.3 | The Transfer Agent affirms that it has, and will continue to have throughout
the term of this Agreement, procedures in place that are reasonably designed to protect
the privacy of non-public personal consumer/customer financial information to the
extent required by applicable laws, rules and regulations. |
11. | EFFECTIVE PERIOD AND TERMINATION |
This Agreement shall become effective as of its execution, shall continue in full force and
effect until terminated by either party by an instrument in writing delivered or mailed, postage
prepaid to the other party, such termination to take effect not sooner than one hundred eighty
(180) days in the case of termination by the Transfer Agent, and ninety (90) days in the case of
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termination by the Trust or a Portfolio, after the date of such delivery or mailing; provided,
however, that any party may at any time immediately terminate this Agreement in the event of the
appointment of a conservator or receiver for the other party or upon the happening of a like event
to the other party at the direction of an appropriate agency or court of competent
jurisdiction. Upon termination of the Agreement, the Trust on behalf of each applicable Portfolio
shall pay to the Transfer Agent such compensation as may be due as of the date of such termination
and shall likewise reimburse the Transfer Agent for its costs, expenses and
disbursements. Termination of this Agreement with respect to any one particular Portfolio shall in
no way affect the rights and duties under this Agreement with respect to the Trust or any other
Portfolio.
12. | ADDITIONAL PORTFOLIOS |
In the event that the Trust establishes one or more series of Shares in addition to the
Portfolios listed on the attached Schedule A, with respect to which the Trust desires to
have the Transfer Agent render services as transfer agent under the terms hereof, it shall so
notify the Transfer Agent in writing, and if the Transfer Agent agrees in writing to provide such
services, such series of Shares shall become a Portfolio hereunder.
13. | ASSIGNMENT |
13.1 | Except as provided in Section 14.1 below, neither this Agreement nor any rights
or obligations hereunder may be assigned by either party without the written consent of
the other party. |
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13.2 | Except as explicitly stated elsewhere in this Agreement, nothing under this
Agreement shall be construed to give any rights or benefits in this Agreement to anyone
other than the Transfer Agent and the Trust and the Portfolios, and the duties and
responsibilities undertaken pursuant to this Agreement shall be for the sole and
exclusive benefit of the Transfer Agent and the Trust and the Portfolios. This
Agreement shall inure to the benefit of, and be binding upon, the parties and their
respective permitted successors and assigns. |
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13.3 | This Agreement does not constitute an agreement for a partnership or joint
venture between the Transfer Agent and the Trust. Other than as provided in Section
14.1, neither party shall make any commitments with third parties that are binding on
the other party without the other party’s prior written consent. |
14. | [RESERVED] | |
15. | MISCELLANEOUS |
15.1 | Amendment. This Agreement may be amended by a written agreement executed by both parties. | ||
15.2 | Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of The |
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Commonwealth of Massachusetts without giving effect to any conflicts of law rules thereof. | |||
15.3 | Force Majeure. The Transfer Agent shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, suspension or restriction of trading on or the closure
of any currency or securities market or system, work stoppages, natural disasters, acts
of war, revolution, riots or terrorism or other similar force majeure events or acts. |
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15.4 | Data Protection. The Transfer Agent will implement and maintain a
comprehensive written information security program that contains appropriate security
measures to safeguard the personal information of the Trust’s shareholders, employees,
directors and/or officers that the Transfer Agent receives, stores, maintains,
processes or otherwise accesses in connection with the provision of services hereunder.
For these purposes, “personal information” shall mean (i) an individual’s name (first
initial and last name or first name and last name), address or telephone number
plus (a) social security number, (b) drivers license number, (c) state
identification card number, (d) debit or credit card number, (e) financial account
number or (f) personal identification number or password that would permit access to a
person’s account or (ii) any combination of the foregoing that would allow a person to
log onto or access an individual’s account. Notwithstanding the foregoing “personal
information” shall not include information that is lawfully obtained from publicly
available information, or from federal, state or local government records lawfully made
available to the general public. |
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15.5 | Survival. All provisions regarding indemnification, warranty, liability, and
limits thereon, and confidentiality, data use and/or protections of proprietary rights
and trade secrets shall survive the termination of this Agreement. |
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15.6 | Severability. If any provision or provisions of this Agreement shall be held
invalid, unlawful, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired. |
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15.7 | Priorities Clause. In the event of any conflict, discrepancy or ambiguity
between the terms and conditions contained in this Agreement and any schedules or
attachments hereto, the terms and conditions contained in this Agreement shall take
precedence. |
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15.8 | Waiver. The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver nor shall it deprive
such party of the right thereafter to insist upon strict adherence to that term or any
term of this Agreement or the failure of a party hereto to exercise or any delay in
exercising any right or remedy under this Agreement shall not constitute a waiver of
any such term, right or remedy or a waiver of any other rights or remedies, and |
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no single or partial exercise of any right or remedy under this Agreement shall prevent
any further exercise of the right or remedy or the exercise of any other right or
remedy. Any waiver must be in writing signed by the waiving party. |
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15.9 | Entire Agreement. This Agreement and any schedules, exhibits, attachments or
amendments hereto constitute the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof whether oral
or written. |
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15.10 | Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, and all such counterparts taken together shall
constitute one and the same Agreement. Counterparts may be executed in either original
or electronically transmitted form (e.g., faxes or emailed portable document format
(PDF) form), and the parties hereby adopt as original any signatures received via
electronically transmitted form. |
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15.11 | Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The parties
hereto all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a party in
the regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. |
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15.12 | Notices. Any notice instruction or other instrument required to be given
hereunder will be in writing and may be sent by hand, or by facsimile transmission, or
overnight delivery by any recognized delivery service, to the parties at the following
address or such other address as may be notified by any party from time to time: |
(a) | If to Transfer Agent, to: |
STATE STREET BANK AND TRUST COMPANY
Transfer Agency
Attention: Compliance
000 Xxxxxxxxxx Xxx
Xxxxxx Place Tower 1, Floor 2.
Xxxxxx, XX 00000
Transfer Agency
Attention: Compliance
000 Xxxxxxxxxx Xxx
Xxxxxx Place Tower 1, Floor 2.
Xxxxxx, XX 00000
With a copy to:
STATE STREET BANK AND TRUST COMPANY
Legal Division – Global Services Americas
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Legal Division – Global Services Americas
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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Attention: Senior Vice President and Senior Managing Counsel
(b) | If to the Trust, to: |
JANUS DETROIT STREET TRUST
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
15.13 | Interpretive and Other Provisions. In connection with the operation of this
Agreement, the Transfer Agent and the Trust on behalf of each of the Portfolios, may
from time to time agree on such provisions interpretive of or in addition to the
provisions of this Agreement as may in their joint opinion be consistent with the
general tenor of this Agreement. Any such interpretive or additional provisions shall
be in a writing signed by all parties, provided that no such interpretive or additional
provisions shall contravene any applicable laws or regulations or any provision of the
Trust’s governing documents. No interpretive or additional provisions made as provided
in the preceding sentence shall be deemed to be an amendment of this Agreement. |
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15.14 | Employment of Others. The Transfer Agent may employ, engage, associate or
contract with such person or persons, including, without limitation, affiliates and
subsidiaries of the Transfer Agent, as the Transfer Agent may deem desirable to assist
it in performing its duties under this Agreement without the consent of the Trust;
provided, however, that the compensation of such person or persons shall be paid by the
Transfer Agent and that the Transfer Agent shall be as fully responsible to the Trust
for the acts and omissions of any such person or persons as it is for its own acts and
omissions under this Agreement. |
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their
names and on their behalf by and through their duly authorized officers, as of the day and year
first above written.
STATE STREET BANK AND TRUST COMPANY | ||||||
By: | /s/ Xxxxxx Xxxxx | |||||
Name: | Xxxxxx Xxxxx | |||||
Title: | Executive Vice President | |||||
JANUS DETROIT STREET TRUST | ||||||
By: | /s/ Xxxxxxxxx Xxxxxxxxxx | |||||
Name: | Xxxxxxxxx Xxxxxxxxxx
|
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Title: | Vice President
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Schedule A
LIST OF PORTFOLIOS
Janus Small Cap Growth Alpha ETF
Janus Small/Mid Cap Growth Alpha ETF
Janus Small/Mid Cap Growth Alpha ETF
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