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Exhibit 23(h)(4)
AMENDMENT TO THE
SERVICES AGREEMENT
FOR XXXXXXXxxx.xxx(R) SERVICES
THIS AMENDMENT ("Amendment"), dated as of June , 2000, is being made to the
Services Agreement dated March 31, 1999 (the "Agreement") between Metropolitan
West Funds (the "Fund") and First Data Investor Services Group, Inc., n/k/a PFPC
Inc. ("PFPC").
WITNESSETH
WHEREAS, the Fund desires to enable End-Users to conduct Inquires with respect
to certain Fund and Shareholder information maintained by PFPC on behalf of the
Fund on the PFPC recordkeeping system (the "PFPC System") through the use of the
Internet and PFPC's XXXXXXXXxx.xxx(R) Services and PFPC desires to allow such
access and provide certain services as more fully described below in connection
therewith.
NOW THEREFORE, the Fund and PFPC agree that as of the date first referenced
above, the Agreement shall be amended as follows:
1. All references to "First Data Investor Services Group, Inc." and "Investor
Services Group" are hereby deleted and replaced with "PFPC Inc." and "PFPC"
respectively.
2. DEFINITIONS. Any term not herein defined shall have the meaning given such
term in the Agreement. The following definitions shall apply to this Amendment:
(a) "End-User" shall mean any Financial Intermediary employee that accesses the
PFPC System via XXXXXXXXxx.xxx(R).
(b) "Financial Intermediary" shall mean any broker-dealer back office operation
authorized by a Shareholder or the Fund to act on behalf of a Shareholder.
(c) "Fund Web Site" means the collection of electronic documents,
electronic files and pages residing on any computer system(s) maintained on
behalf of the Fund, connected to the Internet and accessible by hypertext link
through the World Wide Web to and from XXXXXXXXxx.xxx(R).
(d) "XXXXXXXXxx.xxx(R) Services" means the services identified in
Section 2 hereof to be provided by PFPC utilizing the Fund Web Site, the
Internet and certain software, equipment and systems provided by PFPC,
telecommunications carriers and security providers which have been certified by
ICSA or a nationally-recognized audit firm (including but not limited to
firewalls and encryption), whereby Inquires may be performed by accessing
XXXXXXXXxx.xxx(R) via hypertext link from the Fund Web Site.
(e) "Inquiry" shall mean any access to the PFPC System via XXXXXXXXxx.xxx(R)
initiated by an End-User which is not a Transaction.
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(f) "Internet" shall mean the communications network comprised of multiple
communications networks linking education, government, industrial and private
computer networks.
(g) "XXXXXXXXxx.xxx(R)" means the collection of electronic documents, electronic
files and pages residing on PFPC's computer system(s) (or those elements of the
computer system of one or more Internet Service Providers ("ISPs") retained by
PFPC and necessary for PFPC's services hereunder), connected to the Internet and
accessible by hypertext link from the Funds Web Site through the World Wide Web,
where the Inquiry data fields and related screens provided by PFPC may be
viewed.
(h) "Shareholder" means the record owner or authorized agent of the
record owner of shares of the Fund.
(i) "Transaction" shall mean purchase, redemption, exchange or any
other activity involving the movement of Shares initiated by an End-User.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Amendment, PFPC
shall provide or perform, or shall retain other persons to provide or perform,
the following, at PFPC's expense (unless otherwise provided herein):
(a) provide all computers, telecommunications equipment, encryption technology
and other materials and services reasonably necessary to develop and maintain
XXXXXXXXxx.xxx(R) to permit persons to be able to view information about the
Fund and to permit End-Users with appropriate identification and access codes to
perform Inquiries;
(b) address and mail, at the Fund's expense, notification and promotional
mailings and other communications provided by the Fund to Financial
Intermediaries and/or Shareholders regarding the availability of
XXXXXXXXxx.xxx(R) Services;
(c) process the set up of personal identification numbers ("PIN"), as described
in the XXXXXXXXxx.xxx(R) Product Guide provided to the Fund, which shall include
verification of initial identification numbers issued, reset and activate
personalized PIN's and reissue new PIN's in connection with lost PIN's;
(d) provide installation services which shall include, review and approval of
the Fund's network requirements, recommending method of establishing (and, as
applicable, cooperate with the Fund to implement and maintain) a hypertext link
between XXXXXXXXxx.xxx(R) and the Fund Web Site and testing the network
connectivity and performance;
(e) establish systems to guide, assist and permit End-Users who access
XXXXXXXXxx.xxx(R) from the Fund Web Site to electronically perform Inquires;
(f) deliver to the Fund one (1) copy of the PFPC XXXXXXXXxx.xxx(R) Product
Guide, as well as all updates thereto on a timely basis;
(g) deliver a monthly billing report to the Fund, which shall include a report
of Inquiries;
(h) provide a form of encryption that is generally available to the public in
the U.S. for
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standard Internet browsers and establish, monitor and verify firewalls and other
security features (commercially reasonable for this type of information and
data) and exercise commercially reasonable efforts to attempt to maintain the
security and integrity of the PFPC Web Site;
(i) exercise reasonable efforts to maintain all on-screen disclaimers
and copyright, trademark and service xxxx notifications, if any, provided by the
Fund to PFPC in writing from time to time, and all "point and click" features of
the PFPC Web Site relating to Shareholder acknowledgment and acceptance of such
disclaimers and notifications;
(j) provide periodic site visitation (hit reports) and other information
regarding End-User activity under this Agreement as agreed by PFPC and the Fund
from time to time;
(k) monitor the telephone lines involved in providing XXXXXXXXxx.xxx(R)
Services and inform the Fund promptly of any malfunctions or service
interruptions;
(l) PFPC shall periodically scan its Internet interfaces and
XXXXXXXXxx.xxx(R) for viruses and promptly remove any such viruses located
thereon;
(m) maintenance and support of XXXXXXXXxx.xxx(R), which includes providing error
corrections, minor enhancements and interim upgrades to XXXXXXXXxx.xxx(R) which
are made generally available to XXXXXXXXxx.xxx(R) customers and providing help
desk support to provide assistance to Fund employees with the Fund's use of
XXXXXXXXxx.xxx(R);
Maintenance and support shall NOT include (i) access to or use of any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made generally
available by PFPC to XXXXXXXXxx.xxx(R) clients, as determined solely by PFPC; or
(ii) maintenance of customized features; and
(n) the Fund recognizes and acknowledges that (i) a logon I.D. and PIN are
required by End-Users to access PFPC's XXXXXXXXxx.xxx(R); (ii) End-User's Web
Browser and ISP must support Secure Sockets Layer (SSL) encryption technology;
and (iii) PFPC will not provide any software for access to the Internet;
software must be acquired from a third-party vendor.
3. FUND RESPONSIBILITIES. Subject to the provisions of this Amendment and the
Agreement, the Fund shall at its expense (unless otherwise provided herein):
(a) provide, or retain other persons to provide, all computers,
telecommunications equipment, encryption technology and other materials,
services, equipment and software reasonably necessary to develop and maintain
the Fund Web Site, including the functionality necessary to maintain the
hypertext links to XXXXXXXXxx.xxx(R);
(b) promptly provide PFPC written notice of changes in Fund policies or
procedures requiring changes to the XXXXXXXXxx.xxx(R) Services;
(c) work with PFPC to develop Internet marketing materials for End-Users and
forward a copy of appropriate marketing materials to PFPC;
(d) revise and update the applicable prospectus(es) and other pertinent
materials, such as user
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agreements with End-Users, to include the appropriate consents, notices and
disclosures for XXXXXXXXxx.xxx(R) Services, including disclaimers and
information reasonably requested by PFPC;
(e) maintain all on-screen disclaimers and copyright, trademark and service xxxx
notifications, if any, provided by PFPC to the Fund in writing from time to
time, and all "point and click" features of the Fund Web Site relating to
acknowledgment and acceptance of such disclaimers and notifications; and
(f) design and develop the Fund Web Site functionality necessary to facilitate,
implement and maintain the hypertext links to XXXXXXXXxx.xxx(R) and the various
Inquiry web pages and otherwise make the Fund Web Site available to End-Users.
4. STANDARDS OF CARE FOR INTERNET SERVICES. Notwithstanding anything to the
contrary contained in the Agreement or this Amendment, although PFPC shall
comply with the standard of care specified in the Agreement and above in
providing XXXXXXXXxx.xxx(R) Services, PFPC shall not be obligated to ensure or
verify the accuracy or actual receipt, or the transmission, of any data or
information contained in any transmission via XXXXXXXXxx.xxx(R) Services or the
consummation of any Inquiry request not actually received by PFPC. The Fund
shall advise End-Users to promptly notify the Fund or PFPC of any errors or
inaccuracies in Shareholder data or information transmitted via
XXXXXXXXxx.xxx(R) Services.
5. ADDITIONAL FEES FOR XXXXXXXXxx.xxx(R) SERVICES. As consideration for the
performance by PFPC of XXXXXXXXxx.xxx(R) Services, the Fund will pay the fees
set forth in a separate fee letter as agreed between the parties from time to
time.
6. PROPRIETARY RIGHTS.
(a) Each of the parties 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 the other
under this Amendment. Any software, interfaces or other programs a party
provides to the other hereunder shall be used by such receiving party only
during the term of the Agreement and only in accordance with the provisions of
this Amendment and the Agreement. Any interfaces, other software or other
programs developed by one party shall not be used directly or indirectly by or
for the other party or any of its affiliates to connect such receiving party or
any affiliate to any other person, without the first party's prior written
approval, which it may give or withhold in its sole discretion. Except in the
normal course of business and in conformity with Federal copyright law or with
the other party's consent, neither party nor any of its affiliates shall
disclose, use, copy, decompile or reverse engineer any software or other
programs provided to such party by the other in connection herewith.
(b) The Fund Web Site and XXXXXXXXxx.xxx(R) may contain certain intellectual
property, including, but not limited to, rights in copyrighted works, trademarks
and trade dress that is the property of the other party. Each party retains all
rights in such intellectual property that may reside on the other party's web
site, not including any intellectual property provided by or otherwise obtained
from such other party. To the extent the intellectual property of one party is
cached to expedite communication, such party grants to the other a limited,
non-exclusive, non-transferable license to such intellectual property for a
period of time no longer than that
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reasonably necessary for the communication. To the extent that the intellectual
property of one party is duplicated within the other party's web site to
replicate the "look and feel", "trade dress" or other aspect of the appearance
or functionality of the first site, that party grants to the other a limited,
non-exclusive, non-transferable license to such intellectual property for the
duration of the Agreement. This license is limited to the intellectual property
needed to replicate the appearance of the first site and does not extend to any
other intellectual property owned by the owner of the first site. Each party
warrants that it has sufficient right, title and interest in and to its web site
and its intellectual property to enter into these obligations, and that to its
knowledge, the license hereby granted to the other party does not and will not
infringe on any U.S. patent, U.S. copyright or other U.S. proprietary right of a
third party.
7. REPRESENTATION AND WARRANTY. Neither party shall knowingly insert into any
interface, other software, or other program provided by such party to the other
hereunder, or accessible on XXXXXXXXxx.xxx(R) or Fund Web Site, as the case may
be, any "back door," "time bomb," "Trojan Horse," "worm," "drop dead device,"
"virus" or other computer software code or routines or hardware components
designed to disable, damage or impair the operation of any system, program or
operation hereunder. For failure to comply with this warranty, the non-complying
party shall immediately replace all copies of the affected work product, system
or software. All costs incurred with replacement including, but not limited to
cost of media, shipping, deliveries and installation shall be borne by such
party.
8. LIABILITY LIMITATIONS; INDEMNIFICATION.
(a) THE INTERNET. Each party acknowledges that the Internet is an unsecured,
unstable, unregulated, unorganized and unreliable network, and that the ability
of the other party to provide or perform services or duties hereunder is
dependent upon the Internet and equipment, software, systems, data and services
provided by various telecommunications carriers, equipment manufacturers,
firewall providers, encryption system developers and other vendors and third
parties. Each party agrees that the other shall not be liable in any respect for
the functions or malfunctions of the Internet. Each party agrees the other shall
not be liable in any respect for the actions or omissions of any third party
wrongdoers (i.e., hackers not employed by such party or its affiliates) or of
any third parties involved in the Internet Services and shall not be liable in
any respect for the selection of any such third party, unless such party
breached the standard of care specified herein with respect to that selection.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS SPECIFICALLY
PROVIDED IN SECTIONS 2 AND 4, ALL SOFTWARE AND SYSTEMS DESCRIBED IN THIS
AMENDMENT ARE PROVIDED "AS-IS" ON AN "AS-AVAILABLE" BASIS, AND PFPC HEREBY
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
9. MISCELLANEOUS.
a. INDEPENDENT CONTRACTOR. 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
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or authority to bind or obligate the other in any
manner not expressly set forth herein. Any
contributions to XXXXXXXXxx.xxx(R) by the Fund and
any contributions to the Fund Web Site by PFPC shall
be works for hire pursuant to Section 101 of the
Copyright Act.
(b) CONFLICT WITH AGREEMENT. In the event of a conflict between specific terms
of this Amendment and the Agreement, this Amendment shall control as to
IMPRESSNet.comR Services.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized officers, as of the day and year first above written.
PFPC INC. METROPOLITAN WEST FUNDS
By:__________________________ By:__________________________
Name: _______________________ Name: _______________________
Title: ______________________ Title: ______________________
