Exhibit (h.1)
MASTER SERVICES AGREEMENT
BETWEEN
EACH BTC RECIPIENT LISTED IN EXHIBIT A
AND
STATE STREET BANK AND TRUST COMPANY
Dated as of October [28], 2010
TABLE OF CONTENTS
1. BACKGROUND AND STRUCTURE............................................... 3
2. SERVICES............................................................... 5
3. PERFORMANCE; SERVICE LEVELS............................................ 7
4. STATE STREET PERSONNEL; USE OF LOCATIONS............................... 10
5. BTC RESPONSIBILITIES; RELIANCE ON INFORMATION.......................... 14
6. CHARGES, INVOICING AND PAYMENT......................................... 17
7. TERM AND TERMINATION................................................... 21
8. DISENGAGEMENT ASSISTANCE............................................... 25
9. COMPLIANCE WITH LAWS, POLICIES AND USE RESTRICTIONS.................... 25
10. DATA PROTECTION........................................................ 27
11. CONTRACT AND PROJECT MANAGEMENT........................................ 30
12. AUDIT / RECORDS / LEGAL DISCOVERY...................................... 31
13. CONFIDENTIALITY........................................................ 36
14. PROPRIETARY RIGHTS..................................................... 41
15. REPRESENTATIONS AND WARRANTIES......................................... 42
16. INSURANCE AND RISK OF LOSS............................................. 43
17. INDEMNIFICATION........................................................ 44
18. LIABILITY; LIABILITY LIMITATIONS....................................... 48
19. DISPUTE RESOLUTION..................................................... 51
20. MISCELLANEOUS.......................................................... 53
Master Services Agreement i BTC | State Street
TABLE OF SCHEDULES AND EXHIBITS
EXHIBIT A BTC RECIPIENTS
EXHIBIT B RESERVED
EXHIBIT C CHANGE PROCEDURES
EXHIBIT D GOVERNANCE
EXHIBIT E PHYSICAL SECURITY AND DATA SAFEGUARDS
EXHIBIT F RELATIONSHIP MANAGEMENT MANUAL
EXHIBIT G RESERVED
EXHIBIT H DISENGAGEMENT ASSISTANCE
EXHIBIT I FORM OF PARTICIPATION AGREEMENT
EXHIBIT J LIST OF LEGACY SERVICES AGREEMENTS
EXHIBIT K DEFINITIONS
EXHIBIT L SPECIAL CODE OF CONDUCT
Master Services Agreement ii BTC | State Street
MASTER SERVICES AGREEMENT
This Master Services Agreement (this "Agreement"), is made and entered into
on this [28th] day of October, 2010 ("Effective Date") by and between State
Street Bank and Trust Company, Commonwealth of Massachusetts, with a principal
office located at 0 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("State Street") and each
of the entities set forth in Exhibit A (each, a "BTC Recipient"). Except as
specifically stated, each BTC Recipient executing this Agreement and one or
more Service Modules will be obligating itself only with respect to itself, and
not with respect to any other entity. References to a "Party" herein refer to
either State Street or the applicable BTC Recipient or BTC Recipients, and
references to the "Parties" herein refer to both State Street and the
applicable BTC Recipient or BTC Recipients. This Agreement consists of the
general terms and conditions below and all Exhibits attached hereto.
NOW, THEREFORE, for and in consideration of the Parties' agreements set
forth below and intending to be legally bound, the Parties hereby agree as
follows:
1. BACKGROUND AND STRUCTURE
1.1 BACKGROUND AND PURPOSE.
(a) The BTC Recipients manage a variety of assets, such as bank collective
funds, mutual funds, exchange-traded products and separate accounts.
(b) State Street specializes in performing for other companies the types
of services encompassed by the Service Modules.
(c) The purpose of this Agreement is to establish the general terms and
conditions applicable to State Street's provision of certain
investment administration, accounting, custody, transfer agency, and
related information technology services to the BTC Recipients.
(d) Contemporaneous with or following the execution of this Agreement, one
or more Service Modules will be executed between State Street and one
or more BTC Recipients.
(e) Contemporaneous with the execution of this Agreement, State Street and
BlackRock Institutional Trust Company, N.A. ("BTC") will enter into
certain license agreements and arrangements within a Service Module
(the "License Agreements"), pursuant to which BTC, its Affiliates and
certain third parties shall have the right to use certain Intellectual
Property of State Street, subject to and in accordance with the terms
and conditions set forth therein.
(f) State Street and certain BTC Recipients are parties to the agreements
listed in Exhibit J hereto (the "Legacy Services Agreements"),
pursuant to which State Street has provided certain Services, which
Legacy Services Agreements State Street and such BTC Recipients desire
to terminate in accordance with the terms hereof.
Master Services Agreement 3 BTC | State Street
1.2 OBJECTIVES. Subject to Section 20.13(c), the Parties have agreed upon the
following objectives to be accomplished by this Agreement:
(a) to leverage State Street's capability to deliver Services in
accordance with the Standard of Care;
(b) to gain access to State Street's high caliber, knowledgeable,
experienced and skilled pool of resources that will provide each BTC
Recipient with value-added strategic thought, vision and leadership;
(c) to use technologically current tools, Equipment and Software in
performing the Services; and
(d) to establish a global relationship and contract governance structure
combined with a single, integrated Service delivery model to
facilitate the use of consistent, integrated approaches and processes
across geographies.
1.3 STRUCTURE OF AGREEMENT.
(a) Master Services Agreement. This Agreement is a master agreement
governing the relationship between the Parties solely with regard to
State Street's provision of Services to each BTC Recipient under the
applicable Service Modules.
(b) Service Modules.
(i) Each Service Module will specify:
(A) the Services to be provided thereunder;
(B) terms and conditions specific to such Services;
(C) fees and charging mechanisms specific to such Services;
(D) Service Levels specific to such Services;
(E) as applicable, provisions addressing the disposition and
transfer of any resources specific to such Services,
including Equipment, Software, personnel, and/or third party
contracts; and
(F) any other terms relevant to such Service Module.
(ii) Except as otherwise expressly set forth in an applicable Service
Module:
(A) each Service Module will incorporate into such Service
Module by reference the terms and conditions of this
Agreement and any Participation Agreements, as applicable;
and
(B) no Service Module will incorporate any terms or conditions
of any other Service Module unless expressly provided
otherwise in such Service Module.
(c) Participation Agreements.
Master Services Agreement 4 BTC | State Street
(i) BTC Affiliates. Any party that desires to receive Services under
an existing Service Module may become a party to this Agreement
and to such Service Module upon the mutual agreement of State
Street and such party, each in their discretion, through the
execution of a Participation Agreement, using the form set forth
in Exhibit I.
(ii) Charges. State Street will charge each such BTC Recipient for any
Services rendered pursuant to such Service Module in accordance
with the applicable terms and conditions set forth in the Service
Modules. State Street will not charge such BTC Recipient any
implementation fees, except as set forth in the applicable
Service Module.
(d) Termination of Legacy Services Agreements. Upon the full execution of
a Service Module or a Participation Agreement to a particular Service
Module, any of the Legacy Services Agreements shall be terminated with
respect to such Services and shall be of no further force or effect,
except with respect to obligations that have accrued prior to such
time or as otherwise provided in such Legacy Services Agreements.
1.4 DEFINITIONS. Defined terms used in this Agreement have the meanings
referenced in Exhibit K unless otherwise defined. Capitalized terms that
are used but not defined in any Exhibit to this Agreement or in any Service
Module will have the respective meanings assigned to them in this Agreement
(unless otherwise noted in such other documents).
2. SERVICES
2.1 GENERALLY. State Street will provide the following services, functions and
responsibilities as they may evolve during the term of this Agreement and
as they may be supplemented, enhanced, modified or replaced (collectively,
the "Services") under each Service Module for the applicable BTC Recipients:
(a) the services, functions and responsibilities described in such Service
Module or elsewhere herein, excluding any services, functions or
responsibilities that are expressly described as the responsibility of
a BTC Recipient or a third party (other than a Subcontractor);
(b) those functions, services and responsibilities that were provided by
State Street to the BTC Recipients under the Legacy Services
Agreements immediately prior to the Effective Date, even if the
service, function or responsibility is not completely described herein
or in the Service Modules; and
(c) any services, functions or responsibilities not specifically described
in this Agreement or such Service Module, but which are an inherent
part of the Services and required for the proper performance or
provision of the Services.
Except as provided above, State Street will not be responsible for any
duties or obligations that it does not expressly undertake pursuant to the
terms of this Agreement or any Service Module and no such duties will be
implied or inferred. Except as set forth in an applicable Service Module
or as required pursuant to Section 9.1, State Street's duties will not
include any obligation to monitor compliance by any BTC Recipient or any
other person with any restriction or guideline imposed by such BTC
Recipient's constitutive documents, by contract or by law or otherwise,
including, but not limited to, the manner in which the assets of the BTC
Recipients or their customers, as applicable, are invested.
Master Services Agreement 5 BTC | State Street
2.2 NON-EXCLUSIVE SERVICES/COOPERATION WITH THIRD PARTIES/NEW SERVICES.
(a) Except as otherwise expressly indicated in any Service Module, BTC may
at its discretion perform any of the Services itself, or enter into
arrangements with third parties to provide the Services.
(b) Furthermore, any BTC Recipient may, at its discretion, perform itself
or enter into arrangements with third parties to provide New Services.
(c) To the extent that a BTC Recipient performs any New Services itself or
Services that it is permitted to perform for itself in accordance with
the terms of this Agreement and the applicable Service Module, or
retains third parties to do so, State Street will cooperate and
coordinate with such entities as such BTC Recipient reasonably
requests, including by using Commercially Reasonable Efforts to modify
its interfaces to those of the BTC Recipient or its third-party
provider to ensure compatibility among such systems and those of State
Street, subject to reimbursement by such BTC Recipient for material
cost incurred by State Street, except to the extent that such BTC
Recipient elects to use available Technology Support Hours in lieu
thereof.
2.3 DIVESTITURES. Except to the extent prohibited by applicable Laws, if any
BTC Recipient relinquishes Control of all or part of a business unit, or a
particular function or facility of any BTC Recipient after the Effective
Date (each, a "Divested Entity"), then at the request of such BTC
Recipient, State Street will continue to provide the Services, including
Disengagement Assistance to such Divested Entity for a period of time BTC
requests, which period will not extend beyond the earlier to occur of:
(a) 24 months after such entity becomes a Divested Entity; or (b) the end
of the period during which State Street is required to provide
Disengagement Assistance under this Agreement, at the rates and in
accordance with the terms and conditions set forth in the applicable
Service Modules; provided, that, such Divested Entity agrees in writing
with State Street to abide by the terms and conditions of the applicable
Service Module and any applicable provisions of this Agreement. The
applicable BTC Recipient shall remain primarily liable for the obligations
of the Divested Entity under the applicable Service Modules.
2.4 SERVICES EVOLUTION AND TECHNOLOGY SUPPORT.
(a) Services Evolution. Throughout the Service Module Terms (including any
extensions or renewals, if applicable), State Street will seek to
improve the quality, efficiency and effectiveness of the Services to
keep pace with technological advances and support the evolving
business needs and efforts of each BTC Recipient to maintain
competitiveness in the markets in which such BTC Recipient competes.
State Street will do this by: (i) discussing with the BTC Recipients
"best practice" techniques and methods in providing the Services;
(ii) applying such techniques to the Services to the extent
practicable and consistent with State Street's overall servicing
strategy; (iii) maintaining a reasonable training program for State
Street Personnel in new techniques and technologies that are used
generally within State Street's organization or first class
international financial services providers of asset processing and
related services and that the applicable BTC Recipient approves for
use in rendering the Services; (iv) developing in conjunction with the
applicable BTC
Master Services Agreement 6 BTC | State Street
Recipient a training program designed to train State Street Personnel
and applicable Subcontractors in new techniques and technologies used
by the BTC Recipients or used generally at first class international
financial services providers of asset processing and related services;
and (v) making investments that State Street reasonably believes is
necessary to maintain the currency of the tools, infrastructure and
other resources State Street uses to render the Services. Upon request
from any BTC Recipient, State Street will provide to such BTC
Recipient any service that State Street is providing to another of its
customers, subject to mutual agreement on equitable pricing and other
terms for such services and applicable third-party restrictions.
(b) Technology Support. State Street will provide additional technology
support in accordance with the terms of Exhibit C and the Service
Modules.
2.5 CHANGES. The Change Procedures will be used by both Parties for all Changes
to the Services. Except as otherwise provided herein or therein, each BTC
Recipient reserves the right to reject State Street's request for a Change
to the Services if such BTC Recipient believes the proposed Change will
have a material impact on the provision of the Services, or if such BTC
Recipient is required to pay any fee or contribute any other resources to
the Change.
2.6 DUE DILIGENCE COMPLETE. State Street hereby acknowledges that with respect
to any Service Module dated as of the date of this Agreement:
(a) The BTC Recipients have delivered or made available to State Street
information and documents State Street has deemed necessary, including
information and documents requested by State Street, for State Street
to understand fully its obligations under the Service Modules; and
(b) State Street's due diligence is complete and there will be no changes
to the Service Modules related in any way to State Street's
performance or non-performance of its due diligence.
3. PERFORMANCE; SERVICE LEVELS
3.1 STANDARD OF CARE. State Street will perform the Services in a manner that
meets the following standards of performance (collectively, the "Standard
of Care"):
(a) without negligence and at least at the same standard of care as State
Street provides for itself and/or its Affiliates with respect to
similar services;
(b) in a manner that meets State Street's obligations under the Agreement
or any Service Module, including the Service Levels; and
(c) with the skill and care that may reasonably be expected of a first
class international financial services provider of asset processing
and related services.
3.2 SERVICE LEVELS. Subject to the terms and conditions of this Agreement and
applicable Service Modules, each Party will perform its obligations under
the Service Level Schedules and cause its third-party providers to do
likewise. State Street and the applicable BTC Recipients may agree, from
time to time, to replace Key Performance Indicators with other Service
Levels to be treated as such.
Master Services Agreement 7 BTC | State Street
3.3 PERFORMANCE MEASUREMENT; MONTHLY SCORECARD.
(a) Beginning after the first full month of the Agreement Term, on a
monthly basis, no later than five (5) Business Days after each such
month end, State Street will prepare and deliver to the applicable BTC
Recipient two balanced scorecards (each, a "Monthly Scorecard") for
the Institutional Accounts and the BTC Funds, respectively, for review
by the Executive Committee at the next scheduled quarterly meeting,
each containing (at a minimum):
(i) the then-current Key Performance Indicators;
(ii) the performance metrics that were included in periodic
reporting under the Legacy Service Agreements prior to the
Effective Date;
(iii) timeliness and budget status, as applicable, for Projects and
Changes;
(iv) turnover (as set forth in Section 4.1(e)(ii) below); and
(v) volume metrics (e.g., volumes, number of accounts, etc.) and
such other statistical information that the Executive Committee
may determine from time to time.
State Street will provide to the BTC Recipients as part of the Monthly
Scorecard such other information relating to the Services as the
Parties agree from time to time, provided that State Street will not
unreasonably withhold its consent to including items requested by the
BTC Recipients.
(b) State Street will promptly prepare and deliver a draft action plan to
address any material failure of State Street with respect to the
matters set forth in Section 3.3(a)(i) and results of previously
implemented plans. The Executive Committee will review a quarterly
summary of the Monthly Scorecards.
(c) State Street's failure to report with respect to any Key Performance
Indicator within fourteen (14) days following the date upon which such
BTC Recipient notifies State Street of such failure will be considered
to be a failure to meet such Key Performance Indicator during the
applicable time period.
3.4 PERFORMANCE ISSUES.
(a) State Street Non-Performance.
(i) If State Street becomes aware of a situation where it has
failed or intends to fail (or a Subcontractor has failed or
intends to fail) to comply with the Service Levels, or
otherwise with its other obligations under a Service Module in
any material respect, State Street will promptly inform the
applicable Authorized Person of such situation, the situation's
impact or expected impact and State Street's action plan to
minimize or eliminate such impact.
(ii) State Street will promptly notify such Authorized Person upon
becoming aware of any circumstances that may reasonably be
expected to jeopardize the timely and successful completion or
delivery of any Service, Project or deliverable.
Master Services Agreement 8 BTC | State Street
(iii) State Street will inform such Authorized Person of any steps State
Street is taking or will take to minimize, eliminate or remediate
such impact, and the projected actual completion (or delivery)
time.
(b) BTC Recipient Non-Performance.
(i) If a BTC Recipient becomes aware of a situation where it has
failed or intends to fail (or a Third Party Provider has failed or
intends to fail) to comply with its obligations under a Service
Module in any material respect, such BTC Recipient will promptly
inform State Street of the situation's impact or expected impact.
(ii) State Street will use Commercially Reasonable Efforts to perform
its obligations on time and to prevent or circumvent such problem
or delay, notwithstanding such BTC Recipient's (or its Third Party
Provider's) failure to perform.
(c) Service Failures.
(i) To the extent State Street experiences a problem or delay in
providing the Services, State Street will promptly notify the
applicable Authorized Person and use Commercially Reasonable
Efforts to continue performing the Services in accordance with the
Service Levels.
(ii) The BTC Recipients will use Commercially Reasonable Efforts to
mitigate the impact of State Street's non-performance to the
extent the problem or delay relates to matters described in
Section 3.4(b)(i) above.
(iii) If State Street is unable to meet its obligations under a Service
Module as a result of the matters described in Section 3.4(b)(i)
above, State Street's non-performance of the affected Services
will be excused to the extent that State Street provides the
affected BTC Recipients with reasonable notice of such
non-performance and uses Commercially Reasonable Efforts to
perform notwithstanding such BTC Recipient's failure to perform.
(iv) Material costs incurred by either Party in the event of a delay or
failure for reasons outside of the control of both Parties will be
allocated as agreed between the Parties.
(d) Resource Reprioritization. Upon request from an Authorized Person,
State Street will use Commercially Reasonable Efforts to reprioritize
or reset the schedule for State Street Personnel's existing work
activities without impacting the established schedule for other tasks
or the performance of the Services in accordance with the Standard of
Care; provided, however, that if it is not practicable to avoid such
an impact, State Street will notify such Authorized Person of the
anticipated impact and obtain its consent prior to proceeding with
such work activities. Each such BTC Recipient, in its sole discretion,
may: (i) forego or delay such work activities; or (ii) temporarily
adjust State Street's work to be performed, the schedules associated
therewith or the Service Levels, to permit State Street's performance
of such work activities. State Street will not be responsible for
breaches of this Agreement or the relevant Service Modules or be
responsible for Losses or Damages, to the extent resulting from a BTC
Recipient's election to so forego, delay or adjust, subject to
Section 3.4(a) and (b) above.
Master Services Agreement 9 BTC | State Street
3.5 ADJUSTMENTS. At least semi-annually the Parties will review the Service
Levels and will make adjustments to them as appropriate to reflect changing
business priorities or improved performance capabilities associated with
advances in technology and methods used to perform the Services.
4. STATE STREET PERSONNEL; USE OF LOCATIONS
4.1 STATE STREET PERSONNEL. "State Street Personnel" means employees of State
Street and State Street Affiliates who perform any Services. A BTC
Recipient may request, and State Street will furnish a staffing plan
regarding State Street Personnel for a Service Module at any time during
the Agreement Term.
(a) Qualifications. All State Street Personnel must be:
(i) suitable, and fully trained (including satisfying relevant
regulatory training and competence requirements);
(ii) properly supervised and subject to well-defined operating
procedures;
(iii) familiar with the products of the applicable BTC Recipient and the
applicable regulatory requirements; and
(iv) available upon reasonable prior notice when required by a BTC
Recipient for training.
(b) Advisements and Agreements.
(i) State Street acknowledges and agrees that, in the course of
providing the Services, State Street Personnel may have access to,
or acquire, knowledge of confidential, proprietary or sensitive
information regarding the BTC Recipients or clients or other
parties with whom the BTC Recipients have a relationship. State
Street will advise such State Street Personnel of the standards
imposed upon them with respect to the Services they render
pursuant to the terms of the Service Modules, which advisement may
occur through, among other things, general policies (e.g.,
standard of conduct) of State Street that are applicable to State
Street Personnel.
(c) State Street shall at all times have in place with all State Street
Personnel agreements (either directly or indirectly through their
respective employers) with all State Street Personnel: (i) with
respect to confidentiality, the scope of which includes BTC
Confidential Information and which contains confidentiality
obligations consistent with State Street's obligations under this
Agreement and the Service Modules; and (ii) respecting Intellectual
Property Rights as necessary for State Street to fulfill its
obligations under this Agreement and the Service Modules.
(d) Compliance with Code of Conduct. State Street will at all times
through the Agreement Term maintain a code of conduct applicable to
its personnel and enforce such code of conduct. Upon request by any
BTC Recipient, State Street will provide a copy of such code of
conduct.
(e) Background Checks.
Master Services Agreement 10 BTC | State Street
(i) State Street will maintain as part of its standard hiring
practices a requirement to perform background checks with respect
to State Street Personnel and Contract Workers. State Street will
conduct adequate background screenings based on FDIC guidelines,
federal bonding requirements and any other applicable regulatory
requirements on all State Street Personnel and Contract Workers
who will provide Services to the BTC Recipients. State Street
will conduct pre-employment screenings of all new State Street
Personnel and Contract Workers who will provide Services to the
BTC Recipients in a manner consistent with State Street's
pre-employment screening policies and procedures. Minimally,
State Street will perform the following background pre-employment
screening checks:
(A) seven (7) years criminal records check;
(B) three (3) years employment verification;
(C) credit check (where appropriate to nature of the position);
and
(D) academic qualifications.
(ii) Resource Sufficiency; Reductions.
(A) As part of the Monthly Scorecard, State Street will provide
a report to the BTC Recipients indicating the turnover rate
for State Street Personnel who are primarily dedicated to
providing Services during the prior month, which, for the
avoidance of doubt, shall exclude any State Street Personnel
who work in a shared services group.
(B) At each meeting of the Executive Committee, the Executive
Committee will discuss any concerns that the BTC Recipients
may have with respect to any such turnover and, as
applicable, the plans of State Street to address excessive
turnover, and the status of State Street's implementation of
such plans.
(C) State Street will notify the Executive Committee prior to
implementing any plan to decrease its staffing of the
Services.
(f) Replacement. Any BTC Recipient may request that State Street reassign
any State Street Personnel from the team that provides Services to
such BTC Recipient on any lawful grounds. State Street will consider
the input of such BTC Recipient. The timing for transfer, reassignment
or replacement of State Street Personnel will be closely coordinated
with the requirements for timing and other elements of the Services so
as to maintain continuity in the performance of the Services.
(g) Immigration. Each Party is responsible for handling and processing all
immigration and employment-related issues and requirements (including
processing visas and ensuring compliance with all applicable Laws)
arising in connection with its personnel, and the other Party will not
be required to participate in any such immigration or visa activities.
Master Services Agreement 11 BTC | Xxxxx Xxxxxx
0.0 XXX XXXXX XXXXXX POSITIONS.
BTC Review. Before assigning an individual to a Key State Street Position,
whether as an initial assignment or as a replacement, State Street will:
(i) notify the affected BTC Recipients of the proposed assignment;
(ii) specify how long that individual has been employed by State Street;
(iii) at a BTC Recipient's request, introduce the individual to appropriate
representatives of such BTC Recipient; and (iv) consult with such BTC
Recipient prior to implementing such assignment. A BTC Recipient may
request different or additional Key State Street Positions during the
Agreement Term, and State Street will comply with such requests except as
prohibited by applicable Laws.
4.3 GOVERNANCE POSITIONS. The Parties will establish two separate governance
structures for the Service Modules for BTC Funds and Institutional
Accounts, respectively, each in accordance with the Governance Procedures.
State Street and the BTC Recipients will consult with one another with
respect to the appointment of persons to the positions contemplated by the
Governance Procedures. Each of State Street and the BTC Recipients, in its
sole discretion, will make the final determination with respect to persons
appointed on its behalf.
4.4 SUBCONTRACTORS.
(a) Notice and Approval. State Street will provide thirty (30) days' prior
written notice (in accordance with Section 20.8) to any affected BTC
Recipient of State Street's intention to subcontract any of its
obligations under the Service Modules, except in connection with any
Permitted Delegation. State Street will not under any circumstances
subcontract any obligations hereunder or under the Service Modules,
other than: (i) Permitted Delegations; and (ii) auxiliary services
that facilitate the Services (e.g., document warehousing and
retrieval, print services, etc.), as otherwise permitted hereunder.
Such notice will identify the proposed Subcontractor, and except with
respect to any Permitted Delegation, such BTC Recipient may reject any
proposed Subcontractor. Upon request therefor, State Street shall
provide the BTC Recipients with a list of its global sub-custodian
providers.
(b) Subcontractor Services.
(i) Except as expressly provided otherwise under this Agreement or a
Service Module, State Street will remain responsible for
obligations, services and functions performed by, and other acts
or omissions its Subcontractors and their employees to the same
extent as if these obligations, services and functions were
performed by State Street, regardless of whether a BTC Recipient
has exercised its right to reject State Street's use of any
proposed Subcontractor, as applicable.
(ii) State Street will be the sole point of contact for each BTC
Recipient with respect to Subcontractors.
4.5 SERVICE LOCATIONS.
(a) State Street Locations. The Services (other than shared or centralized
custody functions within State Street or technology infrastructure,
development or support) provided under the Service Center Module will
be provided from: (i) sites within the Boston, Massachusetts
metropolitan area and California; (ii) sites in Toronto, Canada;
(iii) any location from which Services are provided pursuant to
Permitted
Master Services Agreement 12 BTC | State Street
Delegations; or (iv) other State Street or third party locations with
the prior approval of the affected BTC Recipients. State Street will
provide from time to time upon request from a BTC Recipient an updated
list of jurisdictions in which State Street and its Affiliates operate.
(b) Manner of Use. Except as provided in Section 3.7 with respect to
step-in rights, each Party may only use the other Party's locations
for the sole and exclusive purpose of providing or receiving the
Services (as applicable), except that BTC Recipients may do so in
order to exercise audit rights subject to and in accordance with the
terms of this Agreement and the Service Modules. Any other uses are
subject to the prior approval of the other Party, in its discretion.
The limited rights granted under this Section 4.5 will not constitute
a leasehold or other property interest in favor of the other Party.
Any access to BTC Technology by State Street or a Subcontractor will
be in accordance with applicable risk and control policies of the BTC
Recipients.
4.6 CO-LOCATION OF EMPLOYEES.
(a) The BTC Recipients will be entitled to collectively co-locate up to
five (5) of their employees in each of the facilities used by Covered
Persons and/or iGroup ("BTC Co-Located Employees") (i.e., up to a
total of ten (10) such employees), subject to State Street's right to
object in good faith to any specific employee for regulatory or
security reasons.
(b) BTC Co-Located Employees shall be entitled to monitor the Service
Center Services, the Institutional Services and/or iGroup Services
subject to reasonable restrictions as State Street shall determine,
provided that: (i) such restrictions shall not unduly inhibit such BTC
Co-Located Employees' ability to monitor State Street's compliance
with the Service Levels; and (ii) such BTC Co-Located Employees shall
not be entitled to give instructions or directions to any State Street
Personnel unless such direction constitutes Proper Instructions.
(c) Any Co-Located Employees shall be required to enter into a code of
conduct, provide annual certification to State Street of compliance
with such code, submit to background checks based on FDIC guidelines,
federal bonding requirements and any other regulatory requirements
applicable to State Street, and comply with such procedures designed
to protect the Intellectual Property and Confidential Information of
State Street and its customers as State Street requires of its own
employees operating in a similar environment.
(d) The applicable BTC Recipients will secure from each BTC Co-Located
Employee and provide to State Street a signed, written acknowledgement
that the employee is an employee of such BTC Recipient or BTC (and not
State Street) and that the employee waives any and all
employment-related claims for compensation or otherwise it may have at
any time against State Street. Such BTC Recipient shall be responsible
for ensuring that any such BTC Co-Located Employees comply with the
obligations so established.
Master Services Agreement 13 BTC | Xxxxx Xxxxxx
0. BTC RESPONSIBILITIES; RELIANCE ON INFORMATION.
5.1 BTC OBLIGATIONS.
(a) Other than breaches by a BTC Recipient of its obligations to indemnify
or adhere to obligations with respect to confidentiality or the use or
protection of State Street's Intellectual Property, or failure by a
BTC Recipient to pay undisputed amounts when due, the failure of a BTC
Recipient to perform any of its responsibilities set forth in the
Service Modules will not be deemed a breach of the applicable Service
Module for the purposes of determining State Street's rights to
terminate or suspend Services under this Agreement or any Service
Module.
(b) Subject to Sections 3.4 and 5.1(a) above, the BTC Recipients will:
(i) perform, and cause Third-Party Providers to perform, as required
under any Service Module;
(ii) give State Street such Proper Instructions as State Street
reasonably requests to enable State Street to fulfill its duties
and obligations under any Service Module;
(iii) provide, and cause Third-Party Providers to make available,
information and data to State Street as reasonably required for
State Street to be able to perform its obligations under any
Service Module; and
(iv) use commercially reasonable review and control procedures that are
designed to ensure that:
(A) all trade instructions delivered to State Street are duly
authorized and comply with applicable BTC Recipient Laws, and
internal compliance procedures and policies and investment
restrictions applicable to such BTC Recipients; and
(B) information and data provided by the BTC Recipients is
accurate.
(c) The BTC Recipients will bear all expenses incurred by such BTC
Recipients' operation of their retained businesses that are not
assumed by State Street under this Agreement or any Service
Module. Notwithstanding the foregoing, BTC and the BTC Recipients
will not be responsible for the cost of any conversions to State
Street systems or changes required to be made to BTC Technology in
order to accommodate such conversions, except to the extent such a
Change is expressly requested to be accelerated or otherwise
modified in any material respect by BTC or a BTC Recipient.
(d) Deemed Representations and Warranties.
(i) To the extent State Street is required to give (or is deemed to
have given) any representation or warranty to a third party
relating to any BTC Recipient or its Customers in order to
complete the relevant transaction in connection with the issuance
or transmission of trade notifications, confirmations and/or
settlement instructions, whether using facsimile transmission,
industry messaging utilities and/or the proprietary software of
Third-Party Providers, clearing agencies, depositories and other
securities systems, such BTC Recipient will be deemed to have made
such representation or warranty to State Street, except to the
extent that any breach or alleged breach of such representation or
warranty results from State Street's failure to perform its
obligations under any Service Module in accordance with the
Standard of Care.
Master Services Agreement 14 BTC | State Street
(ii) To the extent that State Street is required to give (or will be
deemed to give) any such representation or warranty relating to
the BTC Recipients or their Customers other than in accordance
with normal market practices it will notify and obtain the written
consent of the BTC Recipients in advance of giving such
representation or warranty.
(iii) State Street will provide each BTC Recipient with a quarterly
report setting forth all actions taken on behalf of such BTC
Recipient under this Section 5.1(d).
(e) Proper Instructions.
(i) State Street will follow such authentication procedures as may be
agreed upon with each BTC Recipient from time to time for purposes
of verifying that purported Proper Instructions have been
originated by an Authorized Person. The applicable BTC Recipient
will cause all instructions to comply with such agreed upon
procedures and shall cause oral instructions to be promptly
confirmed in writing or by facsimile. Oral instructions will be
considered Proper Instructions if State Street reasonably believes
them to have been originated by an Authorized Person.
(ii) The BTC Recipients acknowledge that the authentication procedures
agreed to by the Parties are intended to provide a commercially
reasonable degree of protection against unauthorized transactions
of certain types and that such authentication procedures are not
designed to detect errors. Such procedures may include the
introduction of security codes or passwords in order that State
Street may verify that electronic transmissions of instructions
have been originated by an Authorized Person. Any purported Proper
Instruction received by State Street in accordance with an agreed
upon authentication procedure will be deemed to have originated
from an Authorized Person and will constitute a Proper Instruction
hereunder or under a Service Module for all purposes.
(iii) State Street will use Commercially Reasonable Efforts to act upon
and comply with any subsequent Proper Instruction which modifies a
prior instruction, but cannot guarantee that such efforts will be
successful in the event that it has already acted upon the
original Proper Instruction.
(iv) State Street's sole obligation with respect to any written Proper
Instruction that is intended to confirm a prior oral instruction
shall be to use Commercially Reasonable Efforts to detect any
discrepancy between the original instruction and such confirmation
in a manner consistent with the Standard of Care and to report
such discrepancy to such BTC Recipient. Such BTC Recipient will be
responsible, at its expense, for taking any action, including any
reprocessing, necessary to correct any such discrepancy or error,
and, to the extent such action requires State Street to act, such
BTC Recipient will give State Street specific Proper Instructions
as to the action required.
(v) An appropriate officer of each BTC Recipient will maintain on file
with State Street his or her certification to State Street, of the
names, powers and signatures
Master Services Agreement 15 BTC | State Street
of the Authorized Persons. If there is any change in the
information set forth in the most recent certification on file
(including without limitation any person named in the most recent
certification who is no longer an Authorized Person as designated
therein), an appropriate officer of the applicable BTC Recipient,
will sign a new or amended certification which will include any
additional or omitted names, signatures or powers. State Street
will be entitled to rely and act upon any request, direction,
instruction, or certification in writing signed by an Authorized
Person of the BTC Recipient given to it by each BTC Recipient
(only with respect to itself) that has been signed by Authorized
Persons named in the most recent certification received by State
Street. Any request, direction, instruction, or certification in
writing signed by an Authorized Person of the BTC Recipient shall
remain in effect only until such time as State Street has had a
reasonably opportunity to begin to act upon the immediately
subsequent request, direction, instruction, or certification in
writing signed by an Authorized Person of the BTC Recipient.
(vi) If and subject to appropriate security procedures agreed by the
Parties, Proper Instructions may include communication effected
directly between electromechanical or electronic devices.
(vii) State Street will have no obligation to act in accordance with
purported Proper Instructions to the extent State Street
reasonably believes that they conflict with the terms of this
Agreement, any Service Module or applicable Law; provided,
however, that State Street will have no obligation to ensure that
any instruction received by it would not contravene any of the
terms of this Agreement, any Service Module or any such Law.
(A) State Street will provide the relevant BTC Recipient with
prompt notification if it decides not to act in accordance
with purported Proper Instructions and such notice will
specify the reasons for its determination.
(B) If the Parties are in disagreement with respect to the
existence of such a conflict, the dispute will be escalated in
accordance with the dispute resolution procedures under
Section 19, except that the Parties agree to accelerate the
timeframes therein.
(f) Signature Authority.
(i) Each BTC Recipient will appoint State Street as its authorized
signatory for the limited purpose of signing communications issued
by State Street on behalf of and in the name of such BTC Recipient
in connection with the discharge by State Street of its duties
under any Service Module.
(ii) State Street will exercise the foregoing authority in each
instance by one of the following methods: (A) application of the
facsimile signature of an authorized employee of any BTC
Recipient, as the same may be provided by such BTC Recipient from
time to time; (B) manual signature of a State Street employee
authorized to act on behalf of such BTC Recipient; or (C) as
otherwise agreed by the Parties from time to time.
Master Services Agreement 16 BTC | State Street
(iii) The Parties will at all times maintain an updated list of State
Street Personnel authorized to exercise the signature authority
conferred hereby.
(iv) The authority of State Street granted under this Section will
commence and be in full force and effect as of the relevant
Service Module Effective Date, and such authority will remain
in force and be binding up to the time of the receipt by State
Street of a written revocation of said authority and reasonable
opportunity to act thereon or the termination or expiration of
the applicable Service Module.
(v) State Street will provide each BTC Recipient with a quarterly
report setting forth all actions taken on behalf of such BTC
Recipient under this Section 5.1(f).
5.2 RELIANCE ON INFORMATION.
(a) In the course of discharging its duties under any Service Module,
State Street may act in reasonable reliance on the data and
information provided to it by or on behalf of a BTC Recipient or by
any persons authorized by a BTC Recipient including, without
limitation, any Third-Party Providers or Authorized Data Sources.
(b) State Street will perform certain reconciliations, variance or
tolerance checks or other specific forms of data review: (i) as
specified in a Service Module; and (ii) in a manner consistent with
all applicable procedures of State Street, including as set forth in
the then-current Relationship Management Manual. Except as provided in
the preceding sentence, State Street will have no responsibility for,
or duty to review, verify or otherwise perform any investigation as to
the completeness, accuracy or sufficiency of any data or information
provided by any BTC Recipient, any persons authorized by any BTC
Recipient or any Third-Party Providers, including, without limitation,
any Authorized Data Sources, Authorized Designees, or Authorized
Persons. State Street will promptly notify the relevant BTC Recipient
if it becomes aware that any information received by it is incomplete,
inaccurate or insufficient in a material respect or is reasonably
likely to give rise to a Loss or in the event of a failure or delay by
any person to provide information required by State Street to
discharge its duties under any Service Module.
6. CHARGES, INVOICING AND PAYMENT
6.1 CHARGES.
(a) Each Service Module will contain a Fee Schedule that sets forth the
charges payable to State Street for the performance of Services under
such Service Module. The applicable BTC Recipient will not be required
to pay State Street any amounts for or in connection with performing
the Services and fulfilling State Street's obligations under any
Service Module other than the charges and any amounts that State
Street is expressly permitted to charge under the terms of this
Agreement or any such Service Module.
(b) Except as State Street and the applicable BTC Recipients may otherwise
agree, amounts payable with respect to a Project or Change will be
payable upon acceptance by such BTC Recipients in accordance with
applicable acceptance testing procedures, if any.
Master Services Agreement 17 BTC | State Street
6.2 EXPENSES. Unless expressly provided otherwise in the applicable Service
Module:
(a) State Street acknowledges and agrees that expenses that it incurs in
performing the Services (including travel and lodging, document
reproduction and shipping, and long-distance telephone) are included
in the charges and rates in the applicable Fee Schedule set forth in
the Service Module. No such expenses will be separately reimbursable
by the BTC Recipients.
(b) Any travel and expenses incurred by State Street that are separately
reimbursable by a BTC Recipient must be approved for reimbursement by
such BTC Recipient in advance and incurred by State Street in
accordance with the then-current applicable travel and expense policy
of such BTC Recipient.
6.3 TAXES. "Taxes" means all taxes, levies or other like assessments, charges
or fees, including, without limitation, income, gross receipts, excise, ad
valorem, property, goods and services, value added ("VAT"), import, export,
sales, use, license, payroll, franchise, utility and privilege taxes or
other taxes, fees, duties, charges, levies, regulatory fees, surcharges or
assessments of any kind whatsoever (whether payable directly or by
withholding), together with any interest and any penalties, additions to
tax or additional amounts, imposed by the United States, or any state,
county, local or foreign government or subdivision or agency thereof.
(a) Property Taxes. Each Party is responsible for all real property,
personal property, and similar ad valorem Taxes imposed on such Party
with respect to any item of property that it owns or leases, to the
extent applicable under a Service Module.
(b) Income Taxes. Each Party is responsible for its own Taxes (including
franchise and privilege Taxes) imposed on the performance or provision
of Services that are based upon or measured by overall net or gross
income or receipts over a period of time, any other Taxes incurred by
such Party in connection with its business, except as otherwise
provided in this Section.
(c) Withholding Taxes.
(i) Any and all payments made by a BTC Recipient under a Service
Module will be made free and clear of and without deduction or
withholding for any and all Taxes; provided, however, that if the
applicable BTC Recipient is required under applicable Law to
deduct any taxes from such payments, then: (A) the sum payable
will be increased as necessary so that after making all required
deductions (including deductions or withholdings applicable to
additional sums payable under this Section 6.3) State Street
receives an amount equal to the sum it would have received had no
such deductions or withholdings been made; (B) such BTC Recipient
will make such deductions or withholdings; and (C) such BTC
Recipient will pay the full amount deducted or withheld to the
relevant governmental authority in accordance with applicable Law.
(ii) Without limitation to any applicable Service Levels:
(A) Any such BTC Recipient will provide State Street with the
appropriate certificates from the relevant Tax authorities
confirming the amount of the Taxes withheld and paid over by
such BTC Recipient in accordance with this Section.
Master Services Agreement 18 BTC | State Street
(B) The Parties further agree to complete and submit to the
relevant Tax authorities within a reasonable period of time
such forms, certifications or other documents as may be
required to reduce or establish an exemption from the
requirement to withhold Tax on the payments by a BTC Recipient
to State Street hereunder.
(C) State Street will respond to reasonable requests by a BTC
Recipient to complete and submit such forms, certifications or
other documents as may be required to reduce or establish an
exemption from the requirement to withhold Taxes on the
payments.
(d) Transfer Taxes. All charges and other sums payable under any Service
Module are exclusive of any applicable excise, property, goods and
services, VAT, import, export, sales, use, consumption, gross receipts
(which are transactional in nature), utility, customs duties, or other
Taxes, fees or surcharges (including regulatory fees or surcharges)
relating to or assessed on the provision, purchase or consumption of
the Services (including any equipment element, as applicable) under
any Service Module ("Transfer Taxes"). All such Transfer Taxes shall
be the responsibility of, and will be paid by, the applicable BTC
Recipients. State Street will itemize on each invoice all Transfer
Taxes and/or Transfer Tax credits due or owed by or to a BTC Recipient
with respect to the Services covered by such invoice. State Street
will adjust the Transfer Taxes applied to any charges in accordance
with this Section for any increases or decreases in the rate or
changes in applicability of such Transfer Taxes during the Service
Module Term. State Street shall properly invoice, collect and remit
such Transfer Taxes to the appropriate taxing authority, and will bear
any interest and penalties for failure to remit such Transfer Taxes in
a timely manner to the appropriate taxing authority, provided that the
applicable BTC Recipient has paid to State Street the invoiced amount
corresponding to such Transfer Tax when due.
(e) Refunds. If any taxing authority refunds any Transfer Tax to State
Street that any BTC Recipient originally paid to State Street in
accordance with this Section, or State Street otherwise becomes aware
that any such Transfer Tax was incorrectly and/or erroneously
collected from any BTC Recipient, or State Street otherwise receives
an economic benefit (such as an audit offset) as the result of
incorrectly and/or erroneously receiving such collected Transfer Taxes
from any BTC Recipient, then State Street will remit to any such BTC
Recipient the amount of refund or tax erroneously or incorrectly
collected, together with any interest thereon received from the
relevant taxing authority. In accordance with Section 6.3(h), the BTC
Recipients will as promptly as practicable take such reasonable
actions to assist State Street in obtaining a refund (to the extent
that State Street has not already received the refund) of the Transfer
Taxes erroneously or incorrectly collected. The BTC Recipients will
promptly forward to State Street any refund of Transfer Taxes
erroneously or incorrectly collected (including interest paid on such
refunds) that they may receive.
(f) Impact of Relocating or Re-Routing the Delivery of Services.
Notwithstanding the provisions of Section 6.3(d) above, any Transfer
Taxes assessed on the provision of the Services for a particular site
resulting from State Street's relocating or re-routing the delivery of
Services for State Street's convenience to, from or through a location
other than the locations used to provide the Services as of the
applicable Service Module Effective Date will be borne by State
Street, but only to the extent that they exceed the sum of the
Transfer Taxes that otherwise would be payable by a BTC
Master Services Agreement 19 BTC | State Street
Recipient on the provision of the Services from, through or by the
locations used to provide the Services as of the applicable Service
Module Effective Date and any reduction in the charges to a BTC
Recipient that may arise as a result of such a change.
(g) State Street Intra-Corporate Transfers. The calculation of Transfer
Taxes, as applicable, will not include, and the BTC Recipients will
not pay, any Taxes that are imposed on intra-corporate transfers or
intermediate suppliers of the Services within State Street's corporate
family (including any Affiliates).
(h) Cooperation and Notification. The Parties agree to fully cooperate
with each other to enable each Party to more accurately determine its
own Tax liability and to minimize such liability to the extent legally
permissible and administratively reasonable, including in connection
with the filing of any Tax return or claim for refund, provided that
this does not result in material costs (including additional Taxes)
for the other Party. Each Party will provide and make available to the
other any exemption certificates, resale certificates, information
regarding out-of-state or out-of-country sales or use of equipment,
materials or Services, and other information reasonably requested by
the other Party. Each Party will notify the other within a reasonable
amount of time of, and coordinate with the other on, the response to
and settlement of any claim for Taxes asserted by applicable Tax
authorities for which such other Party is responsible hereunder. If a
situation occurs where State Street chooses to exercise its right to
back xxxx the relevant BTC Recipients for Transfer Taxes incurred
pursuant to any audit, notice or assessment for which such BTC
Recipients are obligated to pay under a Service Module, State Street
agrees to make every good faith effort to timely notify such BTC
Recipients of its intent to exercise said right.
(i) Other. State Street shall have no responsibility or liability for any
obligations now or hereafter imposed on the BTC Recipients or State
Street as custodian of the BTC Recipient's account by the tax law of
the United States or of any state or political subdivision thereof.
6.4 INVOICING AND PAYMENT DUE. The Fee Schedule to the applicable Service
Module and this Section 6.3(i) set forth the invoicing and payment terms
and procedures associated with the charges payable to State Street for
performance of the Services. State Street will include on each invoice the
calculations used to establish the charges therein.
(a) Supporting Documentation. State Street will maintain complete and
accurate records of, and supporting documentation for, the amounts
billable to and payments made by a BTC Recipient under any Service
Module, in accordance with generally accepted accounting principles
applied on a consistent basis. State Street will provide the
applicable BTC Recipient with documentation and other information with
respect to each invoice as may be reasonably requested by a BTC
Recipient to verify accuracy and compliance with the provisions of the
Service Modules.
(b) Disputed Charges. Each BTC Recipient will pay all charges (other than
those that are disputed in accordance with the terms hereof) when
those payments are due. A BTC Recipient may withhold payment of
particular charges that the BTC Recipient disputes in good faith;
provided, however that such BTC Recipient sends State Street a written
statement of the disputed portions within ninety (90) days of time of
the applicable withholding stating in reasonable detail the nature of
and reason for any such dispute. Both Parties will work diligently and
in good faith to effect an expeditious resolution of any such dispute.
Master Services Agreement 20 BTC | State Street
(c) Invoice Aging. No BTC Recipient will be required to pay any invoices
issued by State Street or any third party more than three (3) months
after the month on which the fees owed thereunder have accrued.
Notwithstanding the foregoing, for any Services provided by any
Subcontractor that is not an Affiliate of State Street, such
three-month period shall not begin until State Street receives the
invoice from the applicable Subcontractor, but in no event will a BTC
Recipient be required to pay any invoices issued by State Street or
any third party for such Subcontractor services more than fifteen
(15) months after the month on which the fees accrued.
(d) Currency. State Street will invoice the applicable BTC Recipient
receiving the Services in the currency mutually agreed upon and set
forth in the Fee Schedule to each Service Module.
7. TERM AND TERMINATION.
7.1 TERM, EXTENSION AND RENEWAL.
(a) Term of Master Services Agreement. Subject to the termination rights
set forth below, this Agreement will remain in effect from Effective
Date until the termination or expiration of all Service Modules (the
"Agreement Term").
(b) Term of Service Modules.
(i) Initial Term. Each Service Module will set forth its Service
Module Effective Date and its initial term ("Initial Term"), as
well as any renewals, if applicable.
(ii) Extension. Unless a BTC Recipient provides notice indicating
whether or not such BTC Recipient intends to renew the Service
Module pursuant to Section 7.1(b)(iii) or either Party
otherwise terminates such Service Module in accordance with its
terms, the term of such Service Module will automatically
extend on a month-to-month basis not to exceed six (6) months
from the end of the Initial Term (the "Extension Period") on
the terms and conditions (including pricing) set forth in this
Agreement and in such Service Module.
(iii) Renewals.
(A) At the end of the Extension Period, the term of the BTC
Funds Service Modules will automatically extend for
additional two (2) year terms on the terms and
conditions (including pricing) set forth in this
Agreement and in such Service Module, unless:
(I) earlier terminated pursuant to the terms thereof; or
(II) either Party elects not to renew by providing
notice to the other Party at least six (6) months prior
to the then-current expiration date.
(B) A BTC Recipient may renew the term of each other Service
Module for up to two (2) additional renewal terms of up
to two (2) years each on the terms and conditions
(including pricing) set forth therein upon at least six
(6) months' written notice to State Street prior to the
end of the
Master Services Agreement 21 BTC | State Street
expiration date of the Initial Term or the expiration
date of the first extension, unless earlier terminated
pursuant to the terms thereof.
7.2 TERMINATION, GENERALLY.
(a) Unless expressly provided otherwise in a Service Module (including
under Sections 12 or 15 of the iGroup Service Module and Service
Center Service Module, respectively), termination by a Party of any
Service Module will be without prejudice to and with full reservation
of any other rights and remedies available to the Parties. Termination
by any BTC Recipient of a Service Module will not affect State
Street's obligations with respect to: (i) any other BTC Recipient
which remains a party to the same or another Service Module, or
(ii) the same BTC Recipient if it remains a party to another Service
Module.
(b) No BTC Recipient will be obliged to pay any termination charges or
wind-down fees in connection with the termination of a Service Module
by such BTC Recipient in accordance with the terms hereof or thereof,
except as expressly provided otherwise in such Service Module.
(c) If a BTC Recipient chooses to terminate a Service Module in part
pursuant to any applicable provision in such Service Module, the fees
payable pursuant to such Service Module will be: (i) adjusted in
accordance with the applicable Fee Schedule to the extent the Services
terminated have separate fees associated with them; or (ii) equitably
adjusted to only reflect those Services that are not terminated in all
other circumstances.
7.3 TERMINATION OF SERVICE MODULES.
(a) By BTC Recipients.
(i) For Cause. A BTC Recipient may terminate (with respect to itself
only) or BTC may terminate (on behalf of itself or the BTC
Recipients) a Service Module, in whole or in part by giving
written notice to State Street, with immediate effect, subject to
Section 8, if State Street:
(A) commits a material breach of its duties or obligations under
such Service Module (except with respect to breaches of State
Street's obligations under Section 13.2(d), which is addressed
under Section 7.3(a)(i)(E) or (F) below), which breach is not
cured (or capable of cure) within thirty (30) days after such
BTC Recipient notifies State Street of such breach;
(B) commits numerous or repeated breaches of its duties or
obligations under any Service Module, where the collective
impact would constitute a material breach thereof ("Persistent
or Pervasive Breach"), provided that: (1) such BTC Recipient
has notified State Street that a Persistent or Pervasive
Breach has occurred; and (2) State Street has failed to cure
the material impact of such breach within thirty (30) days
after such notice;
(C) incurs any three (3) Service Level Defaults in each of three
(3) consecutive months;
Master Services Agreement 22 BTC | State Street
(D) commits a material breach of its obligations hereunder
regarding compliance with any State Street Known Laws
(including without limitation, as provided in 7.3(a)(v)
below), which breach materially adversely affects the
BTC Recipient and is not cured (or capable of cure)
within thirty (30) days after such BTC Recipient
notifies State Street of such breach;
(E) commits Systemic Violations, which in the BTC
Recipient's judgment are materially detrimental to the
business or reputation of such BTC Recipient or the BTC
Funds, unless such BTC Recipient elects to receive
liquidated damages under a Service Module;
(F) commits a Detrimental Breach or series of breaches where
the collective impact would constitute a Detrimental
Breach of the confidentiality provisions of
Section 13.2(d) or of the Special Code of Conduct; or
(G) becomes subject to a consent decree, settlement
agreement, letter of acceptance, waiver and consent, or
other order from or agreement with a regulatory body,
commodities exchange, or other financial services
authority that has a material adverse impact on State
Street's ability to perform the Services, except to the
extent that State Street reasonably demonstrates that an
Affiliate of State Street is capable of performing the
Services without a material adverse impact thereon.
(ii) For Enduring Force Majeure Events. If a Force Majeure Event
substantially prevents or delays performance of Services
necessary for the performance of functions reasonably
identified by a BTC Recipient as critical for more than three
(3) consecutive days, then:
(A) in the case of an Industry Event, such BTC Recipient may
(with respect to itself only) terminate all or any
portion of the Service Modules and affected Services, as
of a date specified by such BTC Recipient in a written
notice of termination to State Street, if State Street
is unable to restore the Services to the extent any
market impacted by such Industry Event resumes trading
or trading support activities relating to such market
are occurring (e.g., settlement, corporate actions,
etc.). In case of such a termination, State Street's
fees under such Service Modules will be equitably
adjusted as necessary to reflect the value of any
remaining Services;
(B) for all other Force Majeure Events, at the option of
such BTC Recipient, such BTC Recipient may (with respect
to itself only) terminate all or any portion of the
Service Modules and Services so affected, as of a date
specified by such BTC Recipient in a written notice of
termination to State Street, in which case, State
Street's fees under such Service Modules will be
equitably adjusted as necessary to reflect the value of
any remaining Services.
(iii) Occasioned by Law. A BTC Recipient may terminate (with respect
to itself only) a Service Module, in whole or in part, as of a
date specified in such termination notice: (A) if State
Street's ability to perform the Services is
Master Services Agreement 23 BTC | State Street
materially adversely impacted or affected by a Law or change in
Law; (B) any order, letter, directive or similar communication
from a governmental authority and regulatory organizations or
other entities with statutory or regulatory authority over a
BTC Recipient directing such BTC Recipient to terminate, cease
or otherwise withdraw from all or any material part of such
Service Module; or (C) if by operation of Law, such Service
Module is required to be terminated.
(iv) Failure to Receive Consent. A BTC Recipient may terminate (with
respect to itself only) a Service Module, in whole or in part,
as of a date specified in such termination notice, in the event
that such BTC Recipient fails to receive any consent required
by Law for State Street to continue to provide such Services
for such Fund and/or the underlying client or Fund instructs
such BTC Recipient that State Street should not continue to act
as provider of such Services.
(v) For Provider's Insolvency. A BTC Recipient may terminate (with
respect to itself only) a Service Module in its entirety if
State Street: (A) becomes insolvent or is unable to meet its
debts as they mature; (B) files a voluntary petition in
bankruptcy or seeks reorganization or to effect a plan or other
arrangement with creditors; (C) files an answer or other
pleading admitting, or fails to deny or contest, the material
allegations of an involuntary petition filed against it
pursuant to any applicable statute relating to bankruptcy,
arrangement or reorganization; (D) will be adjudicated a
bankrupt or will make an assignment for the benefit of its
creditors generally; (E) will apply for, consent to or
acquiesce in the appointment of any receiver or trustee for all
or a substantial part of its property; (F) any such receiver or
trustee will be appointed and will not be discharged within
thirty (30) days after the date of such appointment; or
(G) State Street's auditors issue an opinion expressing doubt
as to whether State Street can maintain itself as a "going
concern."
(vi) Consequences of Non-Compliance. If a governmental authority
makes a determination of a BTC Recipient's material
non-compliance or material violation of Law, and imposes a
fine, penalty or other formal consequence, as a result of a
material failure by State Street Personnel to comply with the
State Street Known Laws, the BTC Recipient may terminate (with
respect to itself only) the affected Service Modules in whole
or in part for cause, except to the extent that State Street is
able to cure such failure to comply within thirty (30) days
after such determination.
(vii) As Set Forth in Service Modules. A BTC Recipient may terminate
(with respect to itself only) a Service Module as otherwise set
forth in such Service Module.
(viii) Dependent Service Modules. The expiration or termination of a
Service Module will not terminate any other Service Module;
provided, however, that a BTC Recipient may, upon termination
of a Service Module, terminate any other Service Module to
which it is a signatory that is, by its terms, dependent on the
terminated Service Module, and in such event the BTC Recipient
will be entitled to a refund of any amounts pre-paid for
Services not yet rendered thereunder.
(b) By State Street. State Street may, by giving written notice to the
relevant BTC Recipient, terminate any Service Module with respect to
such BTC Recipient as of a date specified in the notice of termination
only if each such BTC Recipient:
Master Services Agreement 24 BTC | State Street
(i) materially breaches (which shall be deemed to include any material
breach by any Third-Party Provider or other agent of such BTC
Recipient) any of its obligations to indemnify or adhere to
obligations with respect to confidentiality or the use or protection
of State Street's Intellectual Property, whether arising under this
Agreement, any Service Module, or the License Agreements, which breach
is not cured (or capable of cure) within thirty (30) days after State
Street notifies BTC of such breach; or (ii) fails to pay State Street
undisputed fees when due under such Service Module totaling at least
four (4) months' fees, and fails to cure such breach within thirty
(30) days of notice from State Street of the failure to make payment.
(c) Expiration of Termination Rights. Except as the parties may otherwise
agree, neither Party may invoke any termination right under this
Section 7.3 after one (1) year following the later of: (i) the date
upon which such Party obtains actual knowledge of the event which
first gave rise to such termination right, and (ii) the date upon
which such Party becomes aware of the full and final impact of such
event.
8. DISENGAGEMENT ASSISTANCE
In connection with the termination or expiration by BTC or any BTC Recipient
of its participation in any Service Module, State Street will perform the
disengagement assistance services for the affected BTC Recipient(s) as
provided in Exhibit H hereto ("Disengagement Assistance"). The provision of
Disengagement Assistance by State Street shall be subject to (a) any
restrictions or limitations imposed by applicable State Street Laws or
(b) other measures reasonably necessary to protect the Intellectual Property
or Confidential Information of State Street (including that of its
customers).
9. COMPLIANCE WITH LAWS, POLICIES AND USE RESTRICTIONS
9.1 COMPLIANCE WITH LAWS.
(a) Generally.
(i) "State Street Known Laws" shall mean all BTC Recipient Laws of
which State Street has: (A) actual knowledge; and (B) actual
knowledge that such BTC Recipient Laws are applicable to the
BTC Recipients and the Services. State Street will review and
comply with all State Street Laws and, subject to
Section 9.1(a)(iv) with respect to Proper Instructions, State
Street shall perform the Services in accordance with all State
Street Known Laws.
(ii) State Street will: (A) review and comply with all State Street
Laws; and (B) perform the Services such that no BTC Recipient
will violate any State Street Known Law.
(iii) Each Party (and, in the case of State Street, its
Subcontractors) will use Commercially Reasonable Efforts to
obtain and maintain all necessary approvals, licenses,
consents, permits or authorization of any person or entity, or
any notice to any person or entity, the granting of which is
required by Laws applicable to such Party for: (A) the
consummation of the transactions contemplated by the Service
Modules; and (B) the provision or receipt (as applicable) of
the Services in compliance with all Laws. Upon reasonable
request therefor, each Party will provide reasonable
cooperation to the other Party, at such other Party's expense,
to obtain and maintain any such approvals.
Master Services Agreement 25 BTC | State Street
(iv) If, at any time, State Street desires that a BTC Recipient
interpret a State Street Known Law for purposes of State
Street's compliance with such State Street Known Law in
providing the Services to such BTC Recipient or performing the
Services in a manner that such BTC Recipient will not violate
such State Street Known Law as a result of State Street's
failure to meet its Standard of Care, State Street will submit
a request in writing to such BTC Recipient requesting guidance
on such BTC Recipient's counsel's interpretation of such State
Street Known Law as it applies to the BTC Recipient. Such BTC
Recipient will respond to such request as soon as reasonably
practicable and such guidance will be a Proper Instruction by
such BTC Recipient to State Street with respect to State
Street's performance of the Services that are the subject of
such inquiry.
(v) Each BTC Recipient will review and comply with all BTC
Recipient Laws applicable to it.
(b) Change in Laws.
(i) Each Party will bear the risk of and have financial
responsibility for any change in Laws as set forth in the
Change Procedures.
(ii) To the extent that delivery of the Services will be impacted by
any change in State Street Laws or State Street Known Laws,
State Street will so notify the other affected BTC Recipients
of any required change to the Services or to any systems used
to provide the Services (collectively, "Changes to the
Services") and the impact.
(c) Non-Compliance.
(i) If State Street becomes aware of any non-compliance of State
Street Personnel or a Subcontractor with any Law, State Street
will promptly notify the affected BTC Recipients in writing, to
the extent that such non-compliance affects State Street's
ability to perform its obligations under this Agreement or any
Service Module.
(ii) If any BTC Recipient becomes aware of any non-compliance of
State Street Personnel or a Subcontractor with any State Street
Known Law and becomes aware that such non-compliance affects
State Street's ability to perform its obligations under this
Agreement or any Service Module, such BTC Recipient will
promptly notify State Street in writing.
(iii) State Street will use Commercially Reasonable Efforts to
promptly take necessary action to correct such non-compliance
by State Street or such Subcontractor, to the extent that such
non-compliance affects State Street's ability to perform its
obligations under this Agreement or any Service Module.
(A) Unless such non-compliance is caused by a BTC
Recipient's failure to comply with its duties and
obligations hereunder, State Street will promptly
implement such Changes to the Services as may be
necessary to correct such non-compliance at State
Street's sole cost and expense; and
Master Services Agreement 26 BTC | State Street
(B) If such non-compliance is caused by a BTC Recipient's failure
to comply with its duties and obligations hereunder, State
Street will promptly implement such Changes to the Services as
may be necessary to correct such non-compliance and the
affected BTC Recipients will reimburse State Street for any
actual and demonstrable costs and expenses incurred by State
Street in connection therewith.
(d) Other Assistance. State Street will supply to the applicable BTC
Recipients copies of all annual financial accounts of the BTC
Recipients and, upon request, other information maintained by State
Street on behalf of the BTC Recipients, solely to the extent required
by the BTC Recipients in order to demonstrate its compliance with
applicable Laws and to conduct business with its Customers. State
Street will also assist the affected BTC Recipients with their
dealings with regulatory authorities to the extent directly related to
and reasonably required as a result of the provision of the Services.
9.2 COMPLIANCE WITH CERTAIN POLICIES AND USE RESTRICTIONS.
(a) Compliance with On-Site Policies. Each Party will comply in all
material respects with the other Party's rules and regulations
applicable to visitors when on the premises of the other Party,
provided that each Party's employment policies shall apply to such
Party's personnel and not the policies of the other Party. State
Street will maintain physical security procedures that are designed to
safeguard BTC Data and Confidential Information of each BTC Recipient
provided to State Street as part of the Services against unauthorized
access, which procedures will at all times meet the standards set
forth in Exhibit E or standards that are reasonably likely to be as
protective of BTC Data and Confidential Information of such BTC
Recipients in all material respects.
10. DATA PROTECTION
10.1 BTC DATA.
(a) "BTC Data" means all data and information: (i) submitted to or held by
State Street by or on behalf of such BTC Recipient, including data
submitted by or relating to providers, members and customers of such
BTC Recipient; (ii) obtained by or on behalf of State Street Personnel
in connection with Services and/or the Service Modules that relates to
BTC, a BTC Recipient, or providers, members and customers of BTC or a
BTC Recipient; or (iii) to which State Street Personnel have access in
connection with the provision of the Services that relates to a BTC
Recipient, or providers, members and customers of such BTC Recipient,
and including all Personal Information. All BTC Data is, or will be,
and will remain the property of the applicable BTC Recipient and will
be deemed BTC Confidential Information.
(b) Without limiting the foregoing, no ownership rights in BTC Data will
accrue to State Street or any State Street Personnel by reason of
State Street or any State Street Personnel entering, deleting,
modifying or otherwise Processing any BTC Data.
Master Services Agreement 27 BTC | State Street
(c) Use Restrictions.
(i) Without approval from the applicable BTC Recipient (in its sole
discretion), BTC Data will not be: (A) used by State Street
other than is necessary for State Street's performance of the
Services under the applicable Service Module; (B) disclosed,
sold, assigned, leased or otherwise provided to third parties
by State Street other than as Confidential Information may be
disclosed; or (C) commercially exploited (including, without
limitation, via Processing or data mining) by or on behalf of
State Street or any State Street Personnel.
(ii) State Street will not possess or assert liens or other rights
in or to BTC Data.
(iii) State Street hereby irrevocably and perpetually assigns,
transfers and conveys to the applicable BTC Recipients without
further consideration all of its and their right, title and
interest, if any, in and to BTC Data. At BTC's request, State
Street will execute and deliver to the BTC Recipients any
financing statements or other documents that may be reasonably
necessary or desirable under any Law to preserve, or enable
such BTC Recipients to enforce, their rights hereunder with
respect to BTC Data.
(iv) No removable media on which BTC Data is stored may be used or
re-used to store data of any other customer of State Street or
to deliver data to a third party, including another State
Street customer, unless securely erased in a manner consistent
with the Standard of Care.
(v) Each BTC Recipient will provide State Street with written
notice of any applicable security or confidentiality
obligations or disclosure, notification or consent requirements
applicable to the use or transfer of the BTC Data transmitted
to State Street that are in addition to the requirements set
forth in this Agreement or any Service Module, provided,
however, that any change to State Street's obligations as a
result thereof shall be subject to the Change Procedures.
(d) Return of Data/Record Retention. At the request of a BTC Recipient at
any time during the applicable Service Module Term or upon the
expiration or earlier termination of the Service Module, State Street
will: (i) promptly return to such BTC Recipients, in a useable machine
ready format or such other format as State Street and such BTC
Recipient shall agree upon, all or any part of the BTC Data
attributable to such BTC Recipient; and (ii) erase or destroy all or
any part of such BTC Data in State Street's possession, in each case
to the extent so requested by such BTC Recipient, subject to any data
or record retention requirements applicable to State Street under
applicable Law and excluding any data that State Street is no longer
maintaining as part of its then-current electronic records.
Notwithstanding anything herein to the contrary, State Street may
retain copies of BTC Data to pursue or defend claims or other actions
under or relating to this Agreement or any Service Module and as
otherwise consistent with its regulatory and audit (including Fund
audit) obligations, which data shall remain subject to the
confidentiality rights and obligations hereunder.
Master Services Agreement 28 BTC | State Street
(e) BTC Access.
(i) State Street will make available to the BTC Recipients any BTC
Data that is held in paper form within a reasonable time after
request therefor. In addition, State Street will store and make
available to the BTC Recipients any BTC Data that it maintains
in electronic form on the State Street Technology in a manner
that enables it to be: (A) properly identified as information
relating to the provision of the Services to the BTC
Recipients; and (B) easily, promptly and independently
extracted, copied or transferred from any storage media on
which it is kept.
(ii) Except as specifically set forth in this Agreement or a Service
Module or as otherwise required under applicable Law, State
Street will have no implied right to access any data files,
directories of files, or other BTC Confidential Information,
except to the extent necessary to perform the Services and will
access and/or use such files and BTC Confidential Information
only as and to the extent necessary to perform the Services.
10.2 DATA SAFEGUARDS AND SECURITY. Within a reasonable time after the Effective
Date, State Street will establish and maintain generally accepted industry
"best practices" systems security measures designed to guard against the
destruction, loss, or alteration of BTC Data provided to State Street that
are no less rigorous than those maintained by State Street for its own
information of a similar nature, and that are consistent with the Standard
of Care. State Street will promptly correct any errors or inaccuracies in
BTC Data caused by State Street's failure to meet the Standard of Care or
in the reports delivered to the applicable BTC Recipients under the
Service Modules.
(a) Data Security Plan. Within a reasonable time after the Effective Date,
State Street will implement, maintain and update a data security plan
with respect to BTC Data provided to it that is consistent with the
standards set forth in Exhibit E (which will include both physical and
electronic measures) or, following the Effective Date, such other
generally accepted industry standards as are reasonably likely to be
as protective of BTC Data as Exhibit E, which standards shall be
applicable to the parts within State Street that have access to BTC
Data. Any changes to the safeguards in Exhibit E that are specifically
designated as safeguards that State Street has agreed to adopt
specifically for the BTC Recipients will require prior review and
approval from the affected BTC Recipients, which approval shall not be
unreasonably withheld.
(b) Data Remediation. State Street will remedy any destruction, loss or
alteration of any BTC Data where such destruction, loss or alteration
is caused by State Street, any State Street Personnel, or a
Subcontractor, to the extent technologically feasible and commercially
reasonable, and only upon a BTC Recipient's reasonable request. State
Street will promptly notify the relevant BTC Recipients of any
material destruction, loss or alteration of BTC Data provided to State
Street or a Subcontractor of which State Street becomes aware.
(c) Right to Review. Each BTC Recipient reserves the right to review State
Street's policies and procedures used to maintain the security and
confidentiality of Personal Information, subject to the limitation set
forth in Section 12.2. The provisions of this Section, are in addition
to, and will not be construed to limit any other of the Parties'
respective confidentiality obligations under the Service Modules.
Master Services Agreement 29 BTC | State Street
10.3 DATA SECURITY BREACHES; REMEDIATION OF MALICIOUS CODE.
(a) Data Security Breaches. State Street will monitor and record security
related events on all systems and log such events. If State Street
discovers or become aware of an actual breach of security relating to
BTC Data, except to the extent instructed by legal or regulatory
authorities not to do so:
(i) promptly notify the BTC Regional Program Manager by telephone
and e-mail as soon as practicable but in any event within the
earlier of any of the following: (i) 5:00 PM, local time, the
next Business Day after detecting or becoming aware of such
breach; (ii) forty-eight (48) hours after detecting or becoming
aware of such breach; or (iii) within a shorter timeframe if
required under a State Street Known Law;
(ii) provider confirmatory written notice or fax to the BTC Regional
Program Manager as soon as practicable after detecting or
becoming aware of such breach; and
(iii) investigate and remediate the effects of the breach, and
provide the applicable BTC Recipients with reasonable assurance
that safeguards consistent with State Street's obligations
under this Section 10 have been implemented.
(b) Malicious Code. Generally, the Parties will provide reasonable
cooperation to one another in order to mitigate the impact of any
Malicious Code on the Services, regardless of the origin of such
Malicious Code. Without limiting any Party's other obligations under
the Service Modules, if any Malicious Code is found to have been
introduced by such Party (or any third party acting on such Party's
behalf or direction) into any system used to provide or receive the
Services, such Party will remove such Malicious Code at its expense
or, at the election of such other Party, compensate the other Party
for the reasonable expense of any such removal, and in any case
(wherever such Malicious Code originated), such Party will exercise
Commercially Reasonable Efforts, at no charge to the other Party, to
eliminate, and reduce the effects of, the Malicious Code. If such
Malicious Code causes a loss of operational efficiency or loss of
data, State Street will mitigate such losses and use Commercially
Reasonable Efforts to restore any data lost of the State Street
Technology, subject to reimbursement for reasonable expenses incurred
on account of Malicious Code introduced by a BTC Recipient (or any
third party acting on its behalf or direction).
11. CONTRACT AND PROJECT MANAGEMENT
11.1 GOVERNANCE, MEETINGS AND REPORTS. State Street acknowledges and agrees
that one of the key business requirements of the BTC Recipients is for
State Street to provide the Services in a consistent, integrated manner
across all State Street locations, regardless of geography. To meet such
requirement, State Street will organize its relationship with the BTC
Recipients and its service delivery team in accordance with the governance
committees, processes and procedures set forth in Exhibit D and this
Section 11.
11.2 RELATIONSHIP MANAGEMENT MANUAL.
(a) Generally. State Street has delivered to the BTC Recipients a copy of
a "Process Review Document" drafted in 2006.
Master Services Agreement 30 BTC | State Street
(b) Updates. The Parties acknowledge and agree that the Process Review
Document is an operational document, which State Street may revise
with the BTC Recipients' written approval and without the need to
amend the Service Modules. Within ninety (90) days after the Effective
Date of this Agreement, State Street shall deliver an updated Process
Review Document to the BTC Recipients. Thereafter, at least annually,
State Street shall update the Process Review Document and provide such
updated version to the BTC Recipients.
(c) Perpetual Use of the Manual.
(i) State Street acknowledges and agrees that each BTC Recipient and
its Affiliates will have the right to copy and make derivative
works of the Process Review Document solely for the purpose of
servicing the BTC Recipients.
(ii) Each BTC Recipient and its Affiliates may provide copies of the
Process Review Document to Third Party Providers solely for the
purpose preparing to service and servicing the BTC Recipients.
11.3 CHANGE PROCEDURES. Any Change to the general terms and conditions in the
Service Modules (including changes to the Schedules and Attachments) will
be made in accordance with Exhibit C. Each Party agrees to consider in
good faith any Change request of the other Party and will not unreasonably
withhold or delay its approval of any such request.
12. AUDIT / RECORDS / LEGAL DISCOVERY
12.1 BTC AUDIT RIGHTS. Unless prohibited by applicable Laws, the BTC
Recipients, their auditors (internal or external) and regulators (to the
extent legally required), each as a BTC Recipient may from time to time
designate (collectively, the "BTC Auditors"), may perform audits,
inspections and examinations of: (i) any location or facility or portion
thereof at or from which State Street Personnel are providing the Services
(including, as applicable, walk-throughs of primary and backup data
centers, subject to generally-applicable restrictions imposed by any third
party operators of such data centers); (ii) Subcontractors (subject to the
limitations in Section 12.2(a)(iv) below); and (iii) data, books, logs,
records and other documentation in any media relating to the Services for
the following purposes:
(a) to verify and ascertain the accuracy and correctness of volume
calculations, Service Levels and other measures of performance,
credits and other amounts due and payable to the applicable Parties to
the applicable Service Modules hereunder (including by means of access
to the most recent publicly-available audited financial statements of
State Street and/or its Subcontractors or Permitted Delegates, as
applicable, and relevant information on applicable insurance coverages
to the extent available to State Street);
(b) to verify the integrity of BTC Confidential Information and State
Street's compliance with its duties and obligations with respect to
information protection, security and confidentiality, to the extent
set forth in Section 12.4 below;
(c) to verify State Street's compliance with State Street Known Laws in
any country from or to which Services are provided, including to
verify the integrity and correctness of the training and certification
qualifications offered to and obtained by State Street Personnel where
training or certification is required to comply with State Street
Known Laws;
Master Services Agreement 31 BTC | State Street
(d) to verify the integrity of any data provided by State Street under a
Service Module;
(e) to verify State Street's compliance with regulatory inquiries relating
to the BTC Recipients or the Funds;
(f) to permit the Chief Compliance Officer of the BTC Funds to comply with
the relevant requirements of Rule 38(a)-1;
(g) to verify State Street's compliance with policies and procedures of a
BTC Recipient to which State Street is required to comply under a
Service Module; and
(h) to verify State Street's compliance with any other provision of this
Agreement or the Service Modules.
State Street will make State Street Personnel available to the BTC
Auditors for the purposes described in this Section above.
12.2 LIMITATIONS AND COOPERATION.
(a) Limitations.
(i) Audits will be conducted during State Street's business hours
and upon reasonable notice to State Street except in the case
of emergency or as otherwise may be legally required. Each BTC
Recipient and BTC Auditors will: (A) comply with State Street's
reasonable security and confidentiality requirements when
accessing locations, facilities or other resources owned or
controlled by State Street; and (B) cooperate with State Street
to minimize any disruption to State Street's business
activities, subject to the requirements of any regulatory
authorities.
(ii) Audit rights of the BTC Recipients will be subject to State
Street's rights to impose reasonable limitations on the
frequency and timing of such audits and inspections requested
by the BTC Recipients, except that State Street will not limit
the frequency or timing of audits or inspections by regulators
of the BTC Recipients.
(iii) State Street will not disclose or make any information
available or provide access to: (A) the extent that such
information is subject to legal privilege; (B) the extent that
disclosure or access would result in a breach of law or duty of
confidentiality or privacy owed to a third party or any State
Street Personnel; (C) the extent that such information is
unrelated to the BTC Recipients or the provision of the
Services; (D) State Street's internal audit reports, compliance
or risk management plans or reports, work papers and other
reports and information relating to management functions; or
(E) the extent that such access by the BTC Recipients would, in
State Street's reasonable opinion, compromise the security of
its technology systems or the confidentiality of its customers.
Master Services Agreement 32 BTC | State Street
(iv) Any audits of Subcontractors permitted hereunder shall be
subject to all terms and conditions applicable thereto under
any agreement between State Street and such Subcontractors,
which audit rights State Street will: (A) request in good faith
from such Subcontractor; and (B) negotiate in good faith to
include in such agreement when State Street is otherwise
renegotiating such agreement.
(b) State Street Cooperation.
(i) Subject to the limitations set forth in 12.2(a) above, State
Street and State Street Personnel will provide such assistance
as may be reasonably required to carry out audits as permitted
hereunder, including providing reasonable use of State Street
locations, facilities and other resources reasonably required
in connection therewith, subject to reimbursement for any
material out-of-pocket expenses incurred by State Street in
cooperating with audit activities directed by a BTC Recipient
that are outside the ordinary course of customary audits that
would be expected in connection with services similar to the
Services.
(ii) Subject to the limitations set forth above, State Street
further agrees to cooperate with and facilitate: (A) audits of
BTC Recipients conducted by independent auditors; and
(B) audits or performance of "agreed upon procedures" by
outside auditors as requested by the BTC Recipients or
Customers.
12.3 AUDIT FOLLOW-UP AND REMEDIAL ACTION.
(a) Audit Follow-Up. At the conclusion of an audit or examination, State
Street will cooperate with the applicable BTC Recipients to provide
factual concurrence with issues identified in the review. State Street
and such BTC Recipients will meet to review each final audit report
promptly after the issuance thereof.
(b) Compliance Corrections. If an audit reveals any breach by State Street
with any of its material obligations under a Service Module and State
Street is notified of such breach, State Street will promptly use
Commercially Reasonable Efforts to cure such breach, provided such
breach is capable of cure. To the extent that any BTC Recipient
becomes aware of a breach revealed by an audit, such BTC Recipient
will notify State Street of such breach.
(c) Overcharge. If, as a result of an audit regarding State Street's
charges, it is determined that State Street has overcharged a BTC
Recipient, such BTC Recipient will notify State Street of the
overcharged amount and State Street will promptly pay to such BTC
Recipient such amount, plus interest at the prevailing Federal Funds
rate, calculated from the date of State Street's receipt of the
overcharged amount until the date of payment to such BTC Recipient. If
any such audit reveals an undercharge to State Street of five percent
(5%) or more of the annual service charges for the period audited, the
BTC Recipient will notify State Street and pay such undercharge,
without interest, within thirty (30) days of discovery of such
undercharge. If any such audit reveals an overcharge to a BTC
Recipient of five percent (5%) or more of the annual service charges
for the period audited, State Street will, at the option of such BTC
Recipient, issue to such BTC Recipient a credit (including such
interest) against the charges and reimburse such BTC Recipient for the
reasonable out-of-pocket expenses of such audit relating to such
charges.
Master Services Agreement 33 BTC | State Street
(d) Training/Certification. If as a result of an audit regarding State
Street's training and/or certification requirements, it is determined
that State Street's training or qualifications are not in compliance
with State Street Known Laws, State Street will as soon as reasonably
practicable rectify such non-compliance at State Street's cost and
provide the affected BTC Recipients with reasonable evidence thereof.
12.4 STATE STREET-CONDUCTED AUDITS.
(a) Generally. State Street will conduct all audits under this
Section 12.4 pertaining to the Services through an independent
auditor, generally consistent with State Street's audit practices,
except to the extent otherwise expressly provided hereunder or in any
Service Module. To the extent that State Street becomes aware of a
breach revealed by an audit pursuant to this Agreement or a Service
Module, State Street will notify the BTC Recipients of such breach.
(b) Data Security and Audits.
(i) Notwithstanding the limitations in Section 12.2(a), State
Street will provide access to such auditor that is necessary to
enable such auditor to assess the following: (A) State Street's
compliance with its data security obligations hereunder; and
(B) whether any incident has occurred that has compromised the
security of State Street Technology in a manner such that BTC
Data has been improperly disclosed or altered or that has
created a reasonable likelihood that such a disclosure or
alteration could occur as a result thereof (a "Data Security
Breach").
(ii) Such access may include browse-only access to State Street
Technology consistent with the access provided to BTC
Recipients in connection with the Services, but excluding:
(A) access that to State Street Technology that would permit
the auditor to view information of other clients of State
Street; and (B) the ability to perform any penetration or
similar testing.
(iii) BTC shall be entitled to a report of the audit that will
describe whether State Street has met its data security
obligations hereunder and whether or not a Data Security Breach
has occurred, but that shall otherwise exclude information that
State Street reasonably deems appropriate to exclude.
(iv) If any such audit reveals that State Street has failed to meet
its data security obligations hereunder or that a Data Security
Breach has occurred, upon BTC's request (and at its sole cost
and expense), State Street shall: (A) provide the affected BTC
Recipients with sufficient information to determine the length,
scope and impact of such failure; and (B) employ an independent
third-party auditor jointly selected by State Street and BTC to
perform a follow up audit to determine whether State Street
has: (I) cured its failure to meet its data security
obligations hereunder; or (II) remediated the Data Security
Breach such that an improper disclosure or alteration of BTC
Data is no longer reasonably likely to occur as a result of the
incident giving rise to the follow up audit.
(v) Additional follow-up audits may be required to the extent any
such audit reveals that the data security matters have not been
remediated in all material respects.
Master Services Agreement 34 BTC | State Street
(vi) The results of any such audits and reports provided in
connection therewith shall be Confidential Information of State
Street.
(c) SAS 70 Audit.
(i) State Street will cause a Type II Statement of Auditing
Standards ("SAS") 70 audit (or equivalent audit) to be
conducted at least annually for each facility, including any
shared services facility at or from which State Street provides
the Services. No SAS 70 audit conducted pursuant to this
Agreement or a Service Module will be materially diminished in
scope as compared to the scope of State Street's SAS 70 audits
as of the Effective Date.
(ii) State Street will promptly provide each BTC Recipient with its
updated SAS 70 Type II report on no less than an annual basis
(the "SAS 70 Results"). Thereafter, State Street will provide
to the BTC Recipients certifications indicating material
changes to State Street's internal control environment in such
frequency as the BTC Recipients may reasonably request to
discharge their duties under applicable Law or to the BTC Funds.
(iii) State Street will permit each BTC Recipient to participate in
the planning of each SAS 70 audit, will confer with the BTC
Recipients as to the scope and timing of the audit and will use
Commercially Reasonable Efforts to accommodate requirements and
concerns of the BTC Recipients to the extent practicable.
(iv) From and after the conversion of the Services from the systems
used prior to the Effective Date to other State Street
Technology, in the event the foregoing requirements would
require State Street to alter any SAS 70 that it would have
performed for its other customers State Street shall notify the
applicable BTC Recipient of the same and such BTC Recipient
will elect to either: (1) waive such requirements; or (2) pay
any incremental costs incurred by State Street as a result
thereof (including the cost of separate SAS 70 audits for such
BTC Recipients to the extent reasonably required).
12.5 RECORD MAINTENANCE AND RETENTION. State Street will maintain accurate,
complete and up-to-date books and records relating to the Services in
compliance with the State Street Laws and State Street Known Laws. The BTC
Recipients will retain ownership of such books and records, with each BTC
Recipient owning those books and records that pertain to the Services
provided under the Service Modules to which such BTC Recipient is a party.
State Street will report as soon as possible any matters that are
reasonably likely to materially adversely affect performance of its record
maintenance and retention obligations under the Service Modules. Unless
prohibited by applicable Laws, State Street will maintain and provide
access upon a BTC Recipient's request to the records, documents and other
information (other than any BTC Data or BTC Confidential Information
returned by State Street in accordance herewith) required to comply with
audit rights under the Service Modules until the later of: (a) ten
(10) years after expiration or termination of the final Service Modules or
such longer period required by a State Street Known Law; or (b) when
pending matters relating to the applicable Service Modules (e.g.,
disputes) are closed or applicable statutes of limitations have lapsed.
12.6 COMMUNICATION WITH REGULATORS. If State Street receives any inquiry from
any regulator regarding a BTC Recipient or Customers in relation to the
Services, then except to the extent such inquiry relates to other
customers of State Street, State Street will, to the extent legally
Master Services Agreement 35 BTC | State Street
permissible, consult the relevant BTC Recipient before responding to such
inquiry and will comply with BTC Recipient's reasonable requests regarding
the content or timing of such response, provided, however, that the
foregoing shall not limit or restrict State Street in any manner in
complying with its regulatory obligations in a manner that it, in its sole
discretion, shall determine to be compliant with Law or necessary for the
maintenance of its ongoing relationships with its regulatory authorities.
12.7 LEGAL DISCOVERY. State Street acknowledges and agrees that each BTC
Recipient is required to preserve and produce electronic data in support
of such BTC Recipient's legal discovery obligations, as they may arise,
for investigations and/or litigation. As part of the Services, and to the
extent not prohibited by applicable Laws, State Street will make available
to such BTC Recipient BTC Data that State Street maintains and that is the
subject of any legal discovery obligation of such BTC Recipient, subject
to reimbursement for out of pocket costs reasonably incurred by State
Street to the extent such assistance is not capable of being performed by
State Street Personnel during normal business hours without disruption to
the Services.
12.8 OTHER DISCLOSURES.
(a) State Street will disclose all information related to the Services and
any compensation or fees received by State Street or its Affiliates
that is requested by a BTC Recipient in order for either the BTC
Recipient or a client of a BTC Recipient that invests in or had an
investment in a BTC Recipient reasonably requires to comply with the
reporting and disclosure requirements of Title I of ERISA and the
regulations, forms and schedules issued thereunder.
(b) State Street will furnish each BTC Recipient with such daily
information regarding the BTC Recipient's cash and Securities
positions and activity, as State Street and such BTC Recipient will
from time to time agree.
13. CONFIDENTIALITY
13.1 DEFINITION OF CONFIDENTIAL INFORMATION.
(a) Definition.
(i) "Confidential Information" of a Party means any non-public,
commercially sensitive information belonging to, concerning or
in the possession or control of a Party or its Affiliates (the
"Furnishing Party") that is furnished, disclosed or otherwise
made available of the other Party or its Affiliates (the
"Receiving Party"), and which is:
(A) either marked or identified in writing as confidential,
proprietary, secret or with another designation
sufficient to give notice of its sensitive nature;
(B) of a type that a reasonable person would recognize it to
be commercially sensitive; or
(C) BTC Confidential Information or State Street
Confidential Information.
Master Services Agreement 36 BTC | State Street
(ii) "BTC Confidential Information" includes all information to
which State Street has access in BTC Locations or systems, BTC
Proprietary Information, BTC Data, BTC Software and other
Intellectual Property of BTC Recipients and related systems
access codes and information concerning BTC Recipients and
their Affiliates' existing or proposed products, product types,
product structures, product strategies, target markets, timing
of new product launches, historic trade data, fund performance
data, corporate actions determinations, trading information,
trading strategies, processes, trend information, securities
lending data and markets, billing data, marketing strategies,
financial affairs, employees, shareholder list and information
related to shareholders, Customers or suppliers, and any
non-public personal information as defined by Regulation S-P,
regardless of whether or how it is marked.
(iii) "State Street Confidential Information" includes State Street
proprietary information, Work Product and all other
Intellectual Property of State Street, client lists, marketing
strategies, and all data and information concerning State
Street's clients, in their capacity as State Street's clients,
financial affairs, product types, product structures, product
strategies, timing of new product launches, and fees for
Services or other products or services, regardless of whether
or how such materials are marked.
(b) No Implied Rights. Each Party's Confidential Information will remain
the property of that Party. Nothing contained in this Section will be
construed as obligating a Party to disclose its Confidential
Information to the other Party, or as granting to or conferring on a
Party, expressly or by implication, any rights or license to the
Confidential Information of the other Party. Any such obligation or
grant will only be as provided by other provisions of the Service
Modules.
(c) Exclusions. None of the Confidential Information, State Street
Confidential Information or BTC Confidential Information shall include
any information that the Receiving Party can demonstrate: (i) was, at
the time of disclosure to it, in the public domain; (ii) after
disclosure to it, is published or otherwise becomes part of the public
domain through no fault of the Receiving Party; (iii) was in
possession of the Receiving Party at the time of disclosure to it and
was not the subject of a pre-existing confidentiality obligation;
(iv) was received after disclosure to it from a third party who had a
lawful right to disclose such information to it; or (v) was
independently developed by the Receiving Party without use of the
Confidential Information of the Furnishing Party. Any exclusion from
the definition of Confidential Information contained in a Service
Module will not apply to Personal Information.
(d) Confidential Treatment of the Service Modules. The Service Modules are
confidential agreements between State Street and the BTC Recipients.
The Parties will not reproduce or show copies of any Service Module to
third parties without the other Party's consent, except as may be
permitted by Section 13.3 or Section 20.4, provided however, that BTC
Recipients may disclose the following portions of the Service Modules
to third party providers in connection with migrating the Services to
other service providers: descriptions of the Services, Service Levels,
and provisions regarding Intellectual Property. BTC will seek
confidential treatment of the Service Modules in any BTC Recipient
registration statements, subject to BTC's or any BTC Recipient's sole
discretion as to how it will fulfill its legal obligations or
regulatory requirements.
Master Services Agreement 37 BTC | State Street
13.2 CONFIDENTIALITY OBLIGATIONS.
(a) Generally. The Receiving Party will: (i) not disclose, publish,
release, transfer or otherwise make available the Furnishing Party's
Confidential Information in any form to, or for the use or benefit of,
any person or entity without the Furnishing Party's consent;
(ii) secure and protect the Furnishing Party's Confidential
Information from unauthorized use or disclosure by using at least the
same degree of care as the Receiving Party employs to avoid authorized
use of or disclosure of its own Confidential Information, but in no
event less than reasonable care; and (iii) not duplicate any material
containing the Furnishing Party's Confidential Information except in
the direct performance of its obligations under a Service Module.
Confidential Information may not be used by the Receiving Party or any
of its Affiliates, officers, directors, agents, professional advisors,
approved subcontractors and employees, other than for the purposes
contemplated by this Agreement.
(b) State Street Duties. In addition to its other obligations with respect
to BTC Confidential Information, State Street will:
(i) Provide access to BTC Confidential Information to its employees
only on a need to know basis and will not provide such access
to any employee who directly services a business that competes
now or in the future with BTC Recipients or the Funds.
(ii) Train all State Street Personnel on special restrictions
applicable to BTC Confidential Information hereunder (or under
any Service Module).
(iii) Segregate and protect BTC Confidential Information, by
configuration of its information and processing systems or by
adopting other appropriate measures.
(iv) State Street will use its Commercially Reasonable Efforts to
strengthen the provisions in its agreements with each of its
Subcontractors, which may include, where possible, attempting
to make such provisions comparable to the confidentiality
obligations of State Street under this Agreement. State Street
will provide periodic updates to the BTC Recipients indicating
State Street's progress in obtaining such agreements.
(c) Notice of Unauthorized Acts. The Receiving Party will:
(i) notify the Furnishing Party promptly upon its becoming aware of
any unauthorized possession, use, or knowledge of the
Furnishing Party's Confidential Information by any person;
(ii) promptly furnish to the Furnishing Party full details that the
Receiving Party has or may obtain regarding such unauthorized
access and use reasonable efforts to assist the Furnishing
Party in investigating or preventing the reoccurrence of any
such access;
Master Services Agreement 38 BTC | State Street
(iii) cooperate with the Furnishing Party in any litigation and
investigation against third parties deemed reasonably necessary
by such Party to protect its proprietary rights; and
(iv) promptly take all reasonable actions necessary to prevent a
reoccurrence of any such authorized access.
(d) Special Code of Conduct.
(i) In performing the Services, State Street will direct all
Covered Persons to comply with the Special Code of Conduct set
forth in Exhibit L, without limiting State Street's obligation
under Section 4.1(c). The Special Code of Conduct will apply to
all Covered Persons, and persons who were formerly Covered
Persons but whose duties have changed such that they are no
longer Covered Persons.
(A) Within thirty (30) days after the Effective Date, State
Street will issue a nondisclosure and confidentiality
agreement between BTC and the following Covered Persons
that minimally requires such State Street Personnel to
comply with State Street's confidentiality and
non-disclosure duties hereunder: (I) Covered Persons in
the Service Center or iGroup; (II) such other Covered
Persons who supervise the Service Center or iGroup; and
(III) Covered Persons who support the Institutional
Services (other than personnel who provide shared
services). Within thirty (30) days thereafter, State
Street will use diligent efforts to collect such
agreements in fully executed and binding form, provided
that within ninety (90) days following the Effective
Date, State Street will have collected all such
agreements in fully executed and binding form. During
such ninety (90) day period, State Street will provide
BTC with monthly updates indicating the status of all
such agreements.
(B) State Street will develop a training program with
respect to this Special Code of Conduct, subject to
review and reasonable approval by the BTC Recipients.
(C) No less frequently than annually, each individual
Covered Person will be required to certify that such
individual has read and complied with the Special Code
of Conduct.
(D) The Special Code of Conduct will require that State
Street Personnel maintain the confidentiality of BTC
Confidential Information accessed or otherwise made
known to the Service Center or iGroup and the Funds for
the duration of each individual's employment with State
Street, even if such employee has left the Service
Center or iGroup to work in another area of State
Street's organization, or no longer services the Service
Center or iGroup in a support function.
(ii) All Covered Persons will be required to comply with the Special
Code of Conduct.
(iii) Each Covered Person will receive the training program developed
by State Street with respect to the Special Code of Conduct.
Master Services Agreement 39 BTC | State Street
(iv) State Street will provide such certifications as are required
under the Service Module for Service Center and the Service
Module for iGroup with respect to the compliance with the
Special Code of Conduct. Failure to provide any such
certifications will be deemed a failure of a Key Performance
Indicator and handled in accordance with Exhibit B.
13.3 PERMITTED OR REQUIRED DISCLOSURES.
(a) The Receiving Party may disclose relevant aspects of the Furnishing
Party's Confidential Information to its Affiliates, officers,
directors, agents, professional advisors, approved subcontractors and
employees and other third parties, to the extent that such disclosure
is not restricted under a Service Module or any governmental approvals
and only to the extent that such disclosure is reasonably necessary
for: (i) the performance of its duties and obligations; (ii) the
exercise of its rights, under the Service Modules or the License
Agreements; or (iii) compliance with relevant reasonable policies and
practices of its internal audit, risk management, and legal oversight
functions.
(b) The Receiving Party will take all reasonable measures to ensure that
the Furnishing Party's Confidential Information is not disclosed or
duplicated in contravention of the provisions of this Agreement or the
Service Modules by such officers, directors, agents, professional
advisors, subcontractors and employees.
(c) The Parties' respective obligations in this Section 13 will not
restrict any disclosure required pursuant to any Law; provided,
however, that:
(i) where legally permitted to do so, the Receiving Party will give
reasonable and prompt advance notice of such disclosure
requirement to the Furnishing Party and give the Furnishing
Party reasonable opportunity to object to and contest such
disclosure, to the extent legally permissible; and
(ii) the Receiving Party will use reasonable efforts to secure
confidential treatment for any such information that is
required to be disclosed.
13.4 RETURN OR DESTRUCTION.
(a) As requested by the Furnishing Party during the Agreement Term, the
Receiving Party will return or provide the Furnishing Party a copy of
any designated Confidential Information of the Furnishing Party.
(b) The Receiving Party will return, or at the Furnishing Party's option,
destroy all copies of materials containing the Furnishing Party's
Confidential Information upon the Receiving Party's cessation of work,
completion of its obligations associated with such information under
the Service Modules or upon any earlier termination of all Service
Modules for any reason whatsoever, except to the extent:
(i) that this Agreement, a Service Module or the License Agreements
provide for the Receiving Party to continue to use or retain
items that constitute or contain the Furnishing Party's
Confidential Information after the date of expiration or
termination; or
Master Services Agreement 40 BTC | State Street
(ii) otherwise required to comply with Laws or defend or pursue
claims arising under this Agreement or a Service Module.
In addition, the Receiving Party will destroy all notes, memoranda,
compilations, derivative works, data files or other materials prepared
by or on behalf of the Receiving Party that contain or otherwise
reflect or refer to Confidential Information of the Furnishing Party
to the extent reasonably practicable.
(c) At the Furnishing Party's request, the Receiving Party will certify in
writing that it has returned or destroyed all copies of the Furnishing
Party's Confidential Information in the possession or control of the
Receiving Party or any of its Affiliates, officers, directors, agents,
professional advisors, approved subcontractors and employees.
(d) The Receiving Party will dispose of any "consumer report information,"
as such term is defined in Regulation S-P.
13.5 DURATION OF CONFIDENTIALITY OBLIGATIONS. The Receiving Party's obligations
under this Section apply to Confidential Information of the Furnishing
Party disclosed to the Receiving Party before or after the Effective Date
and will continue during the Agreement Term and survive the expiration or
termination of the Agreement as follows:
(a) as to any portion of the Furnishing Party's Confidential Information
that constitutes a trade secret under applicable law, the obligations
will continue for as long as the Furnishing Party continues to treat
such information as a trade secret; and
(b) as to all other Confidential Information of the Furnishing Party, the
obligations will survive for two (2) years after the Receiving
Party's fulfillment of its obligations under Section 13.4 with
respect to the Confidential Information in question.
14.PROPRIETARY RIGHTS
14.1 GENERALLY. This Section 14 and the License Agreements set forth the
Parties' rights with respect to certain Intellectual Property created or
otherwise made available in connection with the Service Modules. As
between the Parties, the rights apply as set forth in this Section 14
whether State Street Personnel solely or working jointly with any BTC
Recipient or others to perform the work in question.
14.2 BTC PROPRIETARY INFORMATION. All proprietary interest, claim or rights in
client and Customer lists and all other data of any BTC Recipient and its
clients and Customers ("BTC Proprietary Information") will be and remain
such BTC Recipient's sole property. State Street may use BTC Proprietary
Information only to provide the Services and not for any other purpose.
Upon termination or expiration of each Service Module, all BTC Proprietary
Information related to such Service Module will be returned to the BTC
Recipient that provided such BTC Proprietary Information, except as
otherwise provided in a Service Module or to the extent necessary for
State Street to perform continuing obligations. State Street will then
destroy its own copies, and certify to the completion of such destruction
in writing upon request from such BTC Recipient.
Master Services Agreement 41 BTC | Xxxxx Xxxxxx
00. REPRESENTATIONS AND WARRANTIES
15.1 BY STATE STREET. State Street makes the following representations,
warranties and covenants to each BTC Recipient:
(a) Adequate Resources, Skill and Experience. State Street warrants and
covenants that it will use adequate numbers of qualified State Street
Personnel with suitable training, education, experience and skill to
perform the Services in accordance with the Standard of Care. State
Street represents that it is skilled and experienced in providing
services similar to the Services for customers other than the BTC
Recipients.
(b) Software Ownership. It is fully authorized to grant to the BTC
Recipients, such rights, title, interest and ownership (or license
rights to use, as applicable) as are granted pursuant to the Service
Modules.
(c) Currency. The Services, including any Work Product provided by State
Street hereunder, are and will: (i) be capable of supporting all
currencies required to provide the Services; and (ii) not be
adversely affected or manifest any errors by virtue of variations in
currency or pricing structures.
(d) Equal Opportunity Employer. State Street is now an equal opportunity
employer complying with all applicable Laws relating to equal
opportunity employment, and will maintain in effect, and use
reasonable efforts to adhere to a corporate policy intended to
maintain such compliance.
(e) No Debarment. Neither State Street (nor any of State Street Personnel
to State Street's knowledge):
(i) has been debarred by a governmental authority;
(ii) has currently or has had in the past, a debarment proceeding
initiated against them by a governmental authority; or
(iii) will use, in any capacity, in connection with the activities to
be performed under the Service Modules, any person or entity
who, to State Street's knowledge has been debarred or against
whom a debarment proceeding has been initiated by any
governmental authority.
If State Street learns that a person or entity performing on its
behalf under any Service Module has been debarred by any governmental
authority, or has become the subject of debarment proceedings by any
governmental authority, State Street will promptly so notify the
applicable BTC Recipients and will prohibit such person or entity
from performing on State Street's behalf under the Service Modules,
unless otherwise consented to in writing by such BTC Recipients.
15.2 MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents, warrants and
covenants to the other that:
(a) Power and Authority. It has the requisite corporate power and
authority to enter into, and to carry out the transactions
contemplated by the Service Modules to which it is a signatory;
Master Services Agreement 42 BTC | State Street
(b) No Inducements. Such Party has not violated applicable Laws or
regulations or policies in connection with securing the Service
Modules.
(c) Duly Authorized and No Material Default. The execution, delivery and
performance of each Service Module to which it is a signatory and the
consummation of the transactions contemplated by such Service Module:
(i) have been duly authorized by the requisite corporate action on the
part of such Party and will not constitute a violation of any
judgment, order or decree; and (ii) will not constitute a material
default under any material contract by which it or any of its
Affiliates or any of their respective material assets are bound, or an
event that would, with notice or lapse of time or both, constitute
such a default;
(d) Adequate Rights.
(i) It has obtained and will retain, at its sole expense, any and all
necessary rights, licenses, consents and approvals from
governmental authorities and third parties to perform its
obligations under any Service Module to which it is a signatory
and to enter into any Service Module, including the right to grant
the other Party any rights granted under a Service Module; and
(ii)It is the owner of or has the right to use and grant access to any
Intellectual Property made available to the other Party under any
Service Modules to which it is a signatory, including in the case
of State Street, any Work Product, Independent Work, or State
Street Technology that it makes available;
(e) No Pending Proceedings; Litigation. There is no claim, litigation,
proceeding, arbitration, investigation or material controversy pending
or, to the knowledge of such Party, threatened that challenges or may
have a material adverse affect on any Service Modules to which it is a
signatory or the transactions contemplated therein; and
(f) Foreign Corrupt Practices Act. Neither it nor any of its Affiliates or
agents, nor any officer or employee of it, or its Affiliates or agents
has taken or will take any action or make any payment in violation of,
or which may cause it, its Affiliates or agents to be in violation of,
the Foreign Corrupt Practices Act of 1977, as amended, or any
comparable Laws in any country from or to which Service is provided.
Such Party further represents that no person employed by it or any of
its Affiliates in connection with its obligations under any Service
Modules to which it is a signatory is an official of the government of
any country or of any agency thereof, and that no part of any monies
or consideration paid hereunder will accrue for the benefit of any
such official.
16. INSURANCE AND RISK OF LOSS
16.1 REQUIRED INSURANCE COVERAGES. State Street will, throughout the Agreement
Term maintain in full force and effect from a third party that is rated at
least "A-" in Best's Insurance Guide, or is otherwise acceptable to a BTC
Recipient under a particular Service Module, at a minimum the types and
amounts of insurance coverage identified below for its operations
worldwide. For the avoidance of doubt, any policy amounts or limitations
will not in any event be construed as limitations on State Street's
liability under any Service Module.
Master Services Agreement 43 BTC | State Street
(a) Commercial general liability insuring against bodily injury, property
damage, contractors' completed operations and contractual liability
(covering State Street's indemnification obligations contained herein)
with a combined single limit of not less than U.S. $10,000,000 per
claim.
(b) Professional liability and errors and omissions insurance in an amount
not less than U.S. $25,000,000 per claim.
(c) Umbrella coverage (including commercial general liability coverage) of
not less than U.S. $100,000,000 over the coverages shown above.
16.2 SELF-INSURE. Notwithstanding anything to the contrary herein, State Street
may self insure with respect to the insurance required to be maintained
under Section 16.1 provided State Street has net assets of $135 million.
Within ten (10) days from the Effective Date, State Street will provide to
the BTC Recipients a then-current listing of its insurance coverage
relevant to this Agreement and the Service Modules, and will, upon request
therefor, provide an updated listing of such coverage.
16.3 JURISDICTIONS. Each Party will ensure that the insurance required of it
permits payment in each of the jurisdictions in which its insured is
permitted to do business.
17. INDEMNIFICATION
17.1 BY STATE STREET. State Street will indemnify, defend and hold harmless the
applicable BTC Recipient, its Affiliates, and their respective officers,
directors, employees, agents and permitted successors and assigns from any
and all damages, fines, penalties, deficiencies, losses, liabilities
(including judgments and amounts reasonably paid in settlement) and
expenses (including interest, court costs, reasonable fees and expenses of
attorneys, accountants and other experts or other reasonable fees and
expenses of litigation or other proceedings or of any claim, default or
assessment) ("Losses") arising from or in connection with any third party
claim or threatened third party claim to the extent that such Losses are
based on or arising out of any of the following:
(a) breach by State Street or any State Street Personnel of any of its
data protection, information security or confidentiality obligations
hereunder or under a Service Module to which such BTC Recipient is a
signatory;
(b) any claim of infringement or misappropriation of any Intellectual
Property Right alleged to have occurred because of systems or other
Intellectual Property provided by or on behalf of State Street or
based upon the performance of the Services (collectively, the "State
Street Infringement Items"), except to the extent that such
infringement or misappropriation relates to or results from:
(i) changes made by any BTC Recipient or by a third party at the
direction of a BTC Recipient to the State Street Infringement
Items;
(ii) changes to the State Street Infringement Items recommended by
State Street and not made due to a request from any BTC
Recipient, provided that State Street has notified such BTC
Recipient that failure to implement such recommendation would
result in infringement within a reasonable amount of time for
such BTC Recipient to so implement following such notification;
Master Services Agreement 44 BTC | State Street
(iii) any BTC Recipient's combination of the State Street
Infringement Items with products or services not provided or
approved in writing by State Street, except to the extent such
combination arises out of any BTC Recipient's use of the State
Street Infringement Items in a manner consistent with the
applicable business requirements documentation;
(iv) designs or specifications that in themselves infringe and that
are provided by or at the direction of any BTC Recipient
(except in the event of a knowing infringement by State
Street); or
(v) use by a BTC Recipient of any of the State Street Infringement
Items in a manner that is not consistent with the applicable
business requirements documentation or otherwise not permitted
under this Agreement or any Service Module.
(c) any claim or action by, on behalf of, or related to, any prospective,
then-current or former employees of State Street, arising from or in
connection with a Service Module to which a BTC Recipient is a
signatory, including:
(i) any claim arising under occupational health and safety,
worker's compensation, ERISA or other applicable Law;
(ii) any claim arising from the interview or hiring practices,
actions or omissions of employees of State Street;
(iii) any claim relating to any violation by employees of State
Street, or its respective officers, directors, employees,
representatives or agents, of any Law or any common law
protecting persons or members of protected classes or
categories, such laws or regulations prohibiting discrimination
or harassment on the basis of a protected characteristic; and
(iv) any claim based on a theory that such BTC Recipient is an
employer or joint employer of any such prospective,
then-current or former employees of State Street.
(d) claims by clients of State Street relating to services, products or
systems provided by State Street or a Subcontractor to such client(s)
in a shared or leveraged environment; or
(e) any claim initiated by an Affiliate or potential or actual
Subcontractor of State Street asserting rights in connection with a
Service Module to which such BTC Recipient is a signatory.
17.2 BY BTC RECIPIENTS. Each BTC Recipient will indemnify, defend and hold
harmless State Street, its Affiliates and their respective officers,
directors, employees, agents and permitted successors and assigns from any
and all Losses arising from or in connection with any third party claim
based or threatened third party claim to the extent that such Losses are
based on or arising out of any of the following:
(a) breach by such BTC Recipient of any of its confidentiality obligations
hereunder or under a Service Module to which such BTC Recipient is a
signatory;
Master Services Agreement 45 BTC | State Street
(b) any claim or action by, on behalf of, or related to, any prospective,
then-current or former employees of such BTC Recipient arising from or
in connection with a Service Module to which such BTC Recipient is a
signatory, including:
(i) any claim arising under occupational health and safety,
worker's compensation, ERISA or other applicable Law;
(ii) any claim arising from the interview or hiring practices,
actions or omissions of such BTC Recipient;
(iii) any claim relating to any violation by such BTC Recipient, or
its officers, directors, employees, representatives or agents,
of any Law or any common law protecting persons or members of
protected classes or categories, such laws or regulations
prohibiting discrimination or harassment on the basis of a
protected characteristic; and
(iv) any claim based on a theory that State Street is an employer or
joint employer of any such prospective, then-current or former
employee of such BTC Recipient.
17.3 MUTUAL. Each Party will indemnify, defend and hold harmless the other
Party and their respective officers, directors, employees, agents,
successors and assigns from any and all Losses arising from or in
connection with any of the following, including Losses arising from or in
connection with any third party claim or threatened third party claim:
(a) the death or bodily injury of an agent, employee, customer, business
invitee or business visitor or other person caused by the tortious or
criminal conduct of the other Party; or
(b) the damage, loss or destruction of real or tangible personal property
caused by the tortious or criminal conduct of the other Party.
17.4 INFRINGEMENT REMEDY.
(a) If any item or process used by State Street to provide the Services
and made available to the BTC Recipients becomes, or in its reasonable
opinion is likely to become, the subject of an infringement or
misappropriation claim or proceeding, State Street will use
Commercially Reasonable Efforts to, in its sole discretion, take the
following actions at no additional charge to such BTC Recipient as
soon as reasonably practicable:
(i) secure the right to continue using the item or process; or
(ii) replace or modify the item or process to make it
non-infringing, provided that the replacement or modification
will not degrade performance or quality in any material respect,
if neither (i) nor (ii) is available to State Street on commercially
reasonable terms, remove the item or process from the Services and
equitably reduce State Street's charges to reflect such removal,
provided that no such removal will diminish the scope of State Street's
obligation to perform the Services hereunder or under a Service Module.
Master Services Agreement 46 BTC | State Street
(b) State Street's obligations in this Section and its related
indemnification obligations under Section 17.1(b) shall be the
affected BTC Recipient's sole rights and remedies in connection with
infringement claims described herein. For the purposes of
clarification, nothing in this Section 17.4 will limit a BTC
Recipient's ability to seek remedies for State Street's failure to
provide the Services under this Agreement or the Service Modules.
17.5 INDEMNIFICATION PROCEDURES.
(a) Any Third-Party Claim. If any third party claim is commenced against a
Party entitled to indemnification under this Section (the "Indemnified
Party"), notice thereof will be given to the Party obligated to
indemnify such claim (the "Indemnifying Party") as promptly as
practicable. No Indemnified Party shall settle or compromise any third
party claim which may be the subject of an indemnification claim
against the Indemnifying Party, whereby such claim involves the
payment of money, without the prior written consent of the
Indemnifying Party, except as set forth herein. Failure to do so shall
relieve the Indemnifying Party of any obligation with respect to such
third party claim.
(i) If, after such notice, the Indemnifying Party acknowledges and
agrees that the terms of the applicable Service Modules apply to
such claim, then such Party may, in a notice promptly delivered to
the Indemnified Party, but in no event less than ten (10) days
prior to the date on which a response to such claim is due,
immediately take control of the defense and investigation of such
claim and to employ and engage attorneys reasonably acceptable to
the Indemnified Party to handle and defend the same, at the
Indemnifying Party's sole cost and expense, subject to the
following:
(A) no settlement of a claim that involves a remedy other than the
payment of money by the Indemnifying Party (which includes as
an unconditional term thereof the giving by each claimant or
plaintiff to such Indemnified Party of a release from all
liability with respect to such claim) will be entered into
without the prior written consent of the Indemnified Party,
which will not be unreasonably withheld;
(B) after notice by the Indemnifying Party to the Indemnified
Party of its election to assume full control of the defense of
any such claim, the Indemnifying Party will not be liable to
the Indemnified Party for any legal expenses incurred
thereafter by such Indemnified Party in connection with the
defense of that claim; and
(C) the Indemnified Party will cooperate, at the cost of the
Indemnifying Party, in all reasonable respects with the
Indemnifying Party and its attorneys in the investigation,
trial and defense of such claim and any appeal arising
therefrom; provided, however, that the Indemnified Party may,
at its own cost and expense (except as otherwise would be the
responsibility of the Indemnifying Party hereunder),
participate, through its attorneys or otherwise, in such
investigation, trial and defense of such claim and any appeal
arising therefrom.
Master Services Agreement 47 BTC | State Street
(ii) If the Indemnifying Party does not assume full control over the
defense of a claim as provided in this Section, the Indemnified
Party may retain control of the defense and investigation of
such claim and employ and engage attorneys reasonably
acceptable to the Indemnifying Party to handle and defend the
same, at the Indemnifying Party's sole cost and expense,
provided that the Indemnifying Party may participate in such
defense at its sole cost and expense. If the Indemnified Party
retains control of the defense of any such claim, any
settlement shall be subject to: (A) a waiver of the Indemnified
Party's rights to further indemnification; and (B) prior
written approval of the Indemnifying Party, which will not be
unreasonably withheld.
(b) Governmental Authority Claims.
(i) Notwithstanding Section 17.5(a), if a claim subject to
indemnification is brought against the Indemnified Party by any
governmental authority, then the Indemnified Party may, in a
notice promptly delivered to the Indemnifying Party, but in no
event less than ten (10) days prior to the date on which a
response to such claim is due, retain control of the defense
and investigation of such claim and employ and engage attorneys
reasonably acceptable to the Indemnifying Party to handle and
defend the same, at the Indemnifying Party's sole cost and
expense; provided, however, that the Indemnifying Party may
participate in such defense, at its sole cost and expense. No
settlement of a claim that involves a remedy other than the
payment of money by the Indemnifying Party will be entered into
without the prior written consent of the Indemnified Party,
which will not be unreasonably withheld.
(ii) If the Indemnified Party does not assume full control over the
defense of a governmental claim subject to such defense as
provided in this Section, the Indemnifying Party will be
entitled to assume control of the defense, in which case the
relevant provisions of Section 17.5(a) will apply.
17.6 ENFORCEMENT. If the Indemnified Party is required to bring a claim against
the Indemnifying Party to enforce the Indemnified Party's rights under
this Section 17, and the Indemnified Party prevails in such claim, then
the Indemnifying Party will indemnify and reimburse the Indemnified Party
for and from any costs and expenses (including reasonable legal fees)
incurred in connection with the enforcement of this Section.
17.7 SUBROGATION. If an Indemnifying Party will be obligated to indemnify an
Indemnified Party, the Indemnifying Party will, upon fulfillment of its
obligations with respect to indemnification, including payment in full of
all amounts due pursuant to its indemnification obligations, be subrogated
to the rights of the Indemnified Party with respect to the claims to which
such indemnification relates.
18. LIABILITY; LIABILITY LIMITATIONS
18.1 GENERALLY. Generally, State Street will be liable for Damages to the
extent of its failure to meet its Standard of Care, subject to the
exceptions set forth in this Section 18, including:
(a) Damages suffered by clients of a BTC Recipient (which includes,
without limitation, segregated accounts, commingled funds, and
investors in commingled funds) will be treated as Damages suffered by
such BTC Recipient.
Master Services Agreement 48 BTC | State Street
(b) State Street will be liable for all acts or omissions of its
Subcontractors to the same extent as if State Street was itself
performing the relevant duties, except as provided in Section 18.2.
(c) Each Party will be responsible for damage to the other Party's
locations if such damage is caused by the personnel of such Party (or
their respective guests), including such personnel's intentional
misconduct, abuse, misuse, neglect, or gross negligence or failure to
comply with its other obligations respecting the other Party's
location.
(d) In the event of a loss of a security for which State Street is
responsible under the terms of this Agreement or a Service Module,
State Street will replace such security, or if such replacement cannot
be effected, State Street will pay to the affected BTC Recipients the
fair market value of such security based on the last available price
as of the close of business in the relevant market on the date that a
claim was first made to State Street with respect to such loss or the
date the loss is first reported to the affected BTC Recipient,
whichever is earlier.
(e) State Street agrees that reasonable expenses incurred by a BTC
Recipient to recover any damages properly owed to it hereunder or a
Service Module (including reasonable attorneys' fees) will be treated
as direct damages hereunder.
(f) Each Party (and their respective Affiliates) will have a duty to
mitigate Damages or Losses for which either Party is responsible,
including where any Damages or Losses can be mitigated by lawfully
pursuing recovery from third parties pursuant to a contractual claim
against such third parties, in which case each Party will conduct or
permit Commercially Reasonable Efforts to so recover.
00.0 XXXXX XXXXXX LIABILITY LIMITATIONS. Subject to State Street's obligations
under this Agreement to mitigate Damages or Losses, State Street will not
be liable, will not be in breach of this Agreement or any Service Module
and will not be required to indemnify any BTC Recipient in respect of, any
Damages or Losses suffered or incurred by any such BTC Recipient to the
extent that such Damages or Losses arise as a result of:
(a) any insolvency or financial default of any Pass Through Foreign
Sub-Custodian, sub-custodian located within or outside of the United
States (exclusive of the Pass Through Foreign Sub-Custodians or State
Street Affiliates), or Eligible Securities Depository, Foreign
Depository, Depository located in the United States, provided that
(i) State Street's selection of such Pass Through Foreign
Sub-Custodian, sub-custodian located within or outside of the United
States (exclusive of the Pass Through Foreign Sub-Custodians or State
Street Affiliates), or Eligible Securities Depository, Foreign
Depository, Depository located in the United States was made in
accordance with the Standard of Care, and (ii) State Street enforces
such rights as it may have against any such Pass Through Foreign
Sub-Custodians, sub-custodian located within or outside of the United
States (exclusive of the Pass Through Foreign Sub-Custodians or State
Street Affiliates), or Eligible Securities Depository, Foreign
Depository, Depository located in the United States.
Master Services Agreement 49 BTC | State Street
(b) any acts or omissions of any Pass Through Foreign Sub-Custodian,
provided that (i) State Street's selection of such Pass Through
Foreign Sub-Custodian was made in accordance with the Standard of
Care, (ii) State Street will be liable to the BTC Recipients to the
same extent as such Pass Through Foreign Sub-Custodian is liable to
State Street, and (iii) State Street enforces such rights as it may
have against any such Pass Through Foreign Sub-Custodians.
(c) any acts or omissions of an Eligible Securities Depository, Foreign
Depository, Depository located in the United States, provided that:
(i) State Street's selection of such security depository was made in
accordance with the Standard of Care and the Service Modules;
(ii) State Street will be liable to the BTC Recipients to the same
extent as such securities depository is liable to State Street; and
(iii) State Street enforces such rights as it may have against any
such securities depository.
(d) any insolvency or financial default or act or omission of a
Subcontractor chosen by or at the direction of such BTC Recipient
(including for avoidance of doubt, any Eligible Securities Depository,
Foreign Depository, Depository or sub-custodian required by BTC),
provided that: (i) a BTC Recipient's exercise of its right to reject
any Subcontractor hereunder will not be considered a choice or
direction of such BTC Recipient; and (ii) State Street enforces such
rights as it may have against such Subcontractor at the expense of,
and as directed by, such BTC Recipient.
(e) any obligations now or hereafter imposed directly on the BTC
Recipients or State Street solely as custodian of the BTC Recipient's
account by the tax law of the United States or of any state or
political subdivision thereof.
(f) acts or omissions of a third party which occurred prior to the
applicable Service Module Effective Date.
(g) with respect to any Service Modules that are outside the scope of
services that were previously provided under the Legacy Service
Agreements, any acts or omissions of a BTC Recipient that occurred
prior to the applicable Service Module Effective Date.
(h) State Street's reliance on Proper Instructions, except to the extent
such Damages or Losses result from State Street's failure to meet its
Standard of Care.
(i) except to the extent any Damages or Losses result from State Street's
failure to meet its Standard of Care, and subject to Sections 3.4 and
5:
(i) any act of, or a failure to perform or a breach by, any BTC
Recipient of its obligations under this Agreement or any
Service Module;
(ii) any revisions to calculation methods made by a BTC Recipient
unless such revisions are communicated in writing to State
Street;
(iii) any acts or omissions of Authorized Data Sources (which may
include the provision by such Authorized Data Sources of
inaccurate, incomplete or corrupt data on which State Street
has relied in providing the relevant Services);
(iv) any act or omission by a Third-Party Provider;
Master Services Agreement 50 BTC | State Street
(v) erroneous information provided by a Third Party Market Utility
Provider, except to the extent State Street's fails to review
and validate such data pursuant to Section 5.2(b);
(vi) State Street relying in good faith upon the accuracy and
completeness of any information provided to it by any BTC
Recipient or Third-Party Provider, except to the extent that
State Street has modified or failed to correct such information
where it had an express obligation to do so pursuant to the
terms of any Service Module and to the extent that such
modification or failure to correct has increased the amount of
the Damages or otherwise resulted in Damages; or
(vii) unavailability of BTC Technology, except to the extent that
State Street fails to comply with Sections 3.4, and 5.
(viii) any untimely exercise of any tender, exchange or other right or
power in connection with foreign securities or other property
of the BTC Recipient's account at any time held by it to the
extent caused by the following: (A) State Street or the
respective Eligible Foreign Custodian is not in actual
possession of such foreign securities or property; and
(B) State Street does not receive Proper Instructions with
regard to the exercise of any such right or power within the
timeframes set forth in the applicable Service Levels.
18.3 LIABILITY LIMITATIONS
(a) Generally.
(i) Except as the parties may otherwise agree, in no event will any
Party to a Service Module, its officers, directors, employees,
Affiliates, subsidiaries, suppliers or subcontractors, be
liable for consequential, indirect, special or incidental
damages thereunder, whether in contract, in tort (including
breach of warranty, negligence and strict liability in tort),
or otherwise, even if such Party has been advised of the
possibility of such damages in advance.
(ii) None of the limitations in this Section 18.3(a) will apply to
direct damages suffered by either Party.
19. DISPUTE RESOLUTION
19.1 INFORMAL DISPUTE RESOLUTION. Any dispute arising out of or relating to the
Service Modules, will be referred to the Executive Committee to attempt to
resolve the dispute. The Executive Committee will meet within five
(5) Business Days of referral to attempt to resolve the dispute. If the
Executive Committee cannot resolve the dispute within ten (10) days after
their first meeting, then the dispute will be escalated to authorized
representatives of the Parties' senior management who are empowered to
resolve the dispute. Such representatives will meet within ten (10) days
after the request. If such representatives cannot resolve the dispute
within twenty (20) days after their first meeting, then the Parties will
submit the dispute to mediation as set forth in Section 19.1.
19.2 MEDIATION. Except as provided herein, no civil action with respect to any
dispute, claim or controversy arising out of or relating to the Service
Modules may be commenced until the matter has been submitted to JAMS
Alternative Dispute Resolution Inc. ("JAMS") for mediation. Either
Master Services Agreement 51 BTC | State Street
Party may commence mediation by providing to JAMS and the other Party a
written request for mediation, setting forth the subject of the dispute
and the relief requested. The Parties will cooperate with JAMS and with
one another in selecting a mediator from JAMS panel of neutrals, and in
scheduling the mediation proceedings. The Parties covenant that they will
participate in the mediation in good faith, and that they will share
equally in its costs. Either Party may seek equitable relief as described
in Section 19.3 prior to the mediation to preserve the status quo pending
the completion of that process. Except for such an action to obtain
equitable relief, neither Party may commence a civil action with respect
to the matters submitted to mediation until after the completion of the
initial mediation session, or forty-five (45) days after the date of
filing the written request for mediation, whichever occurs first.
Mediation may continue after the commencement of a civil action, if the
Parties so desire. The provisions of this Section may be enforced by any
court of competent jurisdiction, and the Party seeking enforcement will be
entitled to an award of all costs, fees and expenses, including reasonable
attorneys' fees, to be paid by the Party against whom enforcement is
ordered. Unless the Parties otherwise agree: (a) the mediation will take
place in San Francisco, California; and (b) the Parties will in good faith
select a single mediator from the JAMS panel of neutrals within ten
(10) days after the dispute was submitted to mediation. The Parties will
consider the location of the mediation in making such selection.
Notwithstanding the foregoing, the Parties will also have the right to
pursue their other rights and remedies at Law or in equity following such
mediation. All negotiations and proceedings pursuant to Sections 19.1 and
19.2 are confidential and will be treated as compromise and settlement
negotiations for purposes of applicable rules of evidence and any
additional confidentiality protections provided by applicable Law.
Notwithstanding the foregoing, evidence that is otherwise admissible or
discoverable will not be rendered inadmissible or non-discoverable as a
result of its use in any informal dispute resolution or mediation.
19.3 OTHER REMEDIES. The initiation of the dispute resolution process as
described above will not prevent any Party from exercising any of its
other rights or remedies hereunder including the right to terminate the
Service Modules in accordance with Section 7 or seek injunctive relief as
described in Section 19.4.
19.4 EQUITABLE REMEDIES. Each Party acknowledges and agrees that a breach of
any of its obligations under this Agreement or any Service Module or
License Agreement with respect to BTC Confidential Information, BTC
Proprietary Information, BTC Data, State Street Confidential Information,
or its infringement or misappropriation of any of the other Party's
Intellectual Property Rights may irreparably harm the other Party in a way
that could not be adequately compensated by money damages. In such a
circumstance, the aggrieved Party may proceed directly to court. If a
court of competent jurisdiction should find that a Party has breached (or
attempted or threatened to breach) any such obligations, such Party agrees
that without any additional findings of irreparable injury or other
conditions to injunctive relief, it will not oppose the entry of an
appropriate order compelling its performance of such obligations and
restraining it from any further breaches (or attempted or threatened
breaches) of such obligations.
19.5 CONTINUITY OF SERVICES. In the event of a dispute between the Parties,
State Street will continue to so perform its obligations under the Service
Modules in good faith during the resolution of such dispute unless and
until such Service Modules are terminated in accordance with the
provisions hereof (or after the expiration of any applicable Disengagement
Assistance, if later).
Master Services Agreement 52 BTC | Xxxxx Xxxxxx
00. MISCELLANEOUS
20.1 FORCE MAJEURE.
(a) Neither Party will be liable for failure to perform or delay in
performing its obligations to the extent such failure or delay is
caused by or resulting from fire, flood, earthquake, elements of
nature or acts of God, wars, riots, civil disorders, rebellions or
revolutions, acts of terrorism, pandemics, nationalization,
expropriation, currency restrictions, political risk (including, but
not limited to, exchange control restrictions, confiscation,
insurrection, civil strife or armed hostilities) to the extent beyond
such Party's reasonable control, or other facts or circumstances
beyond such Party's reasonable control (a "Force Majeure Event");
provided that:
(i) the non-performing Party (and such Party's Subcontractors or
Third-Party Providers, as applicable) are without material
fault in causing the default or delay;
(ii) the default or delay could not have been prevented by
reasonable precautions and cannot reasonably be circumvented by
the non-performing Party through the use of alternate sources,
workarounds plans or other means (including, with respect to
State Street, the implementation of any business continuity or
disaster recovery plan required to be maintained by it under
this Agreement or the applicable Service Module); and
(iii) the non-performing Party uses Commercially Reasonable Efforts
to minimize the impact of such default or delay.
(b) Provided that State Street has exercised reasonable care and diligence
and complied with its obligations to implement its disaster recovery
and business continuity plan and reasonable work-arounds to mitigate
the effect of a Force Majeure Event, a Force Majeure Event will
include:
(i) an Industry Event; and
(ii) any industry-wide strike, lockout or labor dispute involving a
Party's personnel or refusal of such Party's employees to enter
a facility that is the subject of such a labor dispute, to the
extent such refusal is based upon a reasonable fear of harm.
(c) State Street will not be entitled to any additional payments from any
BTC Recipient for costs or expenses incurred by State Street as a
result of any Force Majeure Event.
(d) Notwithstanding the provisions of Section 20.1(a), the BTC Recipients
will have the termination right provided in Section 7.3(a)(ii) with
respect to Force Majeure Events.
20.2 PARTIES' RELATIONSHIP. The Parties to the Service Modules are independent
parties. State Street, in furnishing the Services, is acting as an
independent contractor. State Street has the sole right and obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed, all work to be performed by State Street Personnel under the
Service Modules. At no time will any State Street Personnel represent
himself or herself as an employee of any BTC Recipient or be considered an
employee of any BTC Recipient. State Street is not a joint venturer with,
nor an employee, agent or partner of any BTC Recipient and has no
authority to represent or bind any BTC Recipient as to any matters, except
as expressly authorized in this Agreement or any Service Module.
Master Services Agreement 53 BTC | State Street
20.3 ASSIGNMENT.
(a) By State Street. State Street acknowledges and agrees that the
Services are personal in nature. Without the prior written consent of
all affected BTC Recipients (which consent may be withheld in any BTC
Recipient's sole discretion), State Street will not have the right to
transfer or assign its rights or obligations under the Service Modules
for any reason whatsoever, including by operation of Law.
(b) By BTC. Each BTC Recipient will have the right in its sole discretion
to transfer or assign its rights or obligations under the Service
Modules (in whole or in part), this Agreement and any Participation
Agreements, upon the provision of prior written notice to State
Street, to: (i) any Affiliate of such BTC Recipient so long as the
assignee remains an Affiliate of a BTC Recipient; (ii) a purchaser of
all or substantially all of the capital stock or assets of a BTC
Recipient, provided that such purchaser or entity agrees in writing to
be bound by the applicable Service Modules; (iii) a Affiliate of such
BTC Recipient or to an entity with which a BTC Recipient consolidates
or merges; or (iv) other members of the BTC group. In such
circumstances each such BTC Recipient shall remain primarily liable
for its obligations under this Agreement, the Service Modules and the
Participation Agreements, as applicable.
20.4 PUBLIC DISCLOSURES. Except as: (a) required by Law; (b) required to
discharge its obligations under this Agreement or any Service Module;
(c) permitted pursuant to mutual agreement among the parties (d) permitted
pursuant to Section 13.1(d); or (e) otherwise permitted upon the written
consent of the other Party, neither Party will use or announce, release,
disclose, or discuss with any third parties, information regarding any
Service Module or the Services, including the other Party's name or
trademark in any media releases, advertising or marketing materials, or
disclose that the other is a customer or provider, as applicable. Use of
any trademarks or service marks of any Party (or marks of related
companies) by the other Party will be prohibited, unless the Parties
otherwise agree in a writing. Any grants of publicity rights to State
Street by a BTC Recipient hereunder may not exceed twelve (12) months and
may be renewed only upon written approval of such BTC Recipient. Nothing
in this Section 20.4 shall preclude a BTC Recipient or BTC from
identifying State Street as its service provider.
20.5 NO WAIVER. No failure, delay or omission by a Party to exercise any right,
remedy or power it has under any Service Module will impair or be
construed as a waiver of such right, remedy or power. A waiver by any
Party of any breach or covenant will not be construed to be a waiver of
any succeeding breach or any other covenant. All waivers will be in
writing and signed by an authorized representative of the waiving Party.
20.6 REMEDIES CUMULATIVE. Except as otherwise set forth herein (including any
limitations herein with respect to the remedies that may be exercised by
the BTC recipients in connection with Special Breaches): (a) all remedies
provided for herein (or in any Participation Agreement or Service Module)
will be cumulative and in addition to and not in lieu of any other
remedies available to either Party at law, in equity or otherwise, and
(b) the election by a Party of any remedy provided for herein or otherwise
available to such Party will not preclude such Party from pursuing any
other remedies available to such Party at law, in equity, by contract or
otherwise.
Master Services Agreement 54 BTC | Xxxxx Xxxxxx
00.0 XXXXXXXX XX XXXX XXXXX. Each Party, in its dealings with the other Party
under or in connection with the Service Modules, will act reasonably and
in good faith.
20.8 NOTICES. Any formal notice, consent, approval, acceptance, agreement or
other communication given pursuant to each Service Module will be in
writing and will be effective either when delivered personally to the
Party for whom intended, by facsimile (with confirmation of delivery),
or overnight delivery services (with confirmation of delivery) (unless
delivered after normal business hours, in which case it will be deemed
the next Business Day), addressed to such Parties that are signatories
to the applicable Service Module.
20.9 GOVERNING LAW/PROCEEDINGS.
(a) Governing Law. The Parties irrevocably agree that any legal action,
suit or proceeding arising out of the Service Modules will be brought
solely and exclusively in the State of New York. This Agreement, the
Service Modules and the License Agreements will be construed and
governed under and in accordance with the Laws of that State, without
regard to its conflict of law provisions. All disputes arising out of
this Agreement, the Service Modules and the License Agreements will
be exclusively resolved in a court of competent jurisdiction in the
State of New York. Each Party expressly consents to the jurisdiction
of the U.S. District Court for the Southern District of New York, and
waives any objections or right as to forum non conveniens, lack of
personal jurisdiction or similar grounds.
(b) Certain Laws Not Applicable. The Parties agree that, to the extent
permitted under applicable Law, the provisions of the Uniform
Computer Information Transactions Act, the Electronic Signatures in
Global and National Commerce Act, the Uniform Electronic Transactions
Act, the U.N. Convention on Contracts for the International Sale of
Goods, any federal or state statutory adoptions or equivalents of the
aforementioned Acts and Convention, and any other state or federal
laws related to electronic contracts or electronic signatures will
not apply to the Service Modules.
(c) Proceedings. State Street will, except to the extent legally
impermissible, advise all affected BTC Recipients of actual legal or
other proceedings relating to the Services of which State Street
becomes aware and that materially adversely affect State Street's
ability to meet its obligations under this Agreement or any Service
Module.
20.10 THIRD-PARTY BENEFICIARIES. There will be no third party beneficiaries
under this Agreement, any Participation Agreement or any Service Module,
except for Affiliates of the BTC Recipients that are receiving the
benefit of Services, or as required by Laws.
20.11 WAIVER OF LIENS. State Street, for itself, its employees, permitted
Subcontractors and materialmen, hereby waives and relinquishes all right
to file, have or maintain a mechanic's or similar claim or lien against
any property of any BTC Recipient or any part thereof for or on account
of the work or any materials or Equipment furnished under the Service
Modules. State Street will not create or permit to be created or remain,
any lien, encumbrance or charges levied on account of any mechanics'
lien or claim, which may become a lien, encumbrance or charge upon any
of the property of any BTC Recipient or any part thereof. For avoidance
of doubt, the foregoing shall not waive or preclude the grant of any
lien or security interest provided under any Service Module with respect
to custody services and related extensions of credit.
Master Services Agreement 55 BTC | State Street
20.12 CONFLICTS OF INTEREST. State Street will maintain procedures and
controls to prevent conflicts of interest from adversely affecting the
BTC Recipients.
20.13 RULES OF CONSTRUCTION.
(a) Entire Agreement. This Agreement, consisting of these general terms
and conditions and the attached Exhibit A through Exhibit L, together
with the Service Modules, License Agreements and the iGroup
Intellectual Property Agreement constitute the sole and entire
agreement among the Parties with respect to the subject matter
hereof. This Agreement merges, integrates and supersedes all prior
and contemporaneous discussions, agreements and understandings
between the Parties, whether written or oral, with respect to the
matters contained herein.
(b) Use of Certain Words. Unless the context requires otherwise:
(i) "including" (and any of its derivative forms) means including but
not limited to; (ii) "may" means has the right, but not the
obligation to do something and "may not" means does not have the
right to do something; (iii) "will" and "shall" are expressions of
command, not merely expressions of future intent or expectation;
(iv) "written" or "in writing" is used for emphasis in certain
circumstances, but that will not derogate from the general
application of the notice requirements set forth in Section 20.8 in
those and other circumstances; and (v) use of the singular imports
the plural and vice versa.
(c) Construction of Objectives. The objectives set forth in Section 1.2
or elsewhere in this Agreement or a Service Module provide a general
introduction to this Agreement or the terms set forth in a particular
Section of this Agreement or Service Module. It is not intended to
alter the plain meaning of this Agreement or a Service Module or to
expand the scope of the Parties' express obligations under it.
(d) Interpretation. The terms and conditions of this Agreement are the
result of negotiations between the Parties.
(e) Headings and Article, Section and Exhibit References. The Article and
Section headings, Table of Contents, and Table of Exhibits are for
reference and convenience only and will not be considered in the
interpretation of this Agreement. Unless otherwise indicated, Article
or Section references are to Articles or Sections of the document in
which the reference is contained. References to numbered Articles or
Sections of this Agreement also refer to and include all subsections
of the referenced Article or Section. References to Exhibits of this
Agreement also refer to and include all Attachments of the referenced
Exhibit.
(f) Order of Precedence.
(i) If a conflict occurs between this Agreement and any Exhibit to
this Agreement, the terms of this Agreement will prevail to the
extent necessary to resolve the conflict.
(ii) If a conflict occurs between this Agreement and any Service
Module, the terms of the Service Module will prevail with
respect to the BTC Recipient or BTC Recipients that are
signatories thereto to the extent necessary to resolve the
conflict. Notwithstanding the foregoing, more specific language
in this
Master Services Agreement 56 BTC | State Street
Agreement will not be preempted by less specific language in a
Service Module with respect to the same matter, except to the
extent that there is a direct conflict.
(iii) If a conflict occurs between this Agreement and the License
Agreements, the terms of the License Agreement will prevail to
the extent necessary to resolve the conflict.
(g) Survival. Any and all provisions of this Agreement which by their
nature or effect are required or intended to be observed, kept, or
performed after the expiration or termination of this Agreement will
survive the expiration or any termination of this Agreement and
remain binding upon and for the Parties' benefit.
(h) Severability. If any provision of this Agreement is found by a court
of competent jurisdiction to be invalid, illegal, or otherwise
unenforceable, the same will not affect the other terms or provisions
hereof or the whole of this Agreement, but such term or provision
will be deemed modified to the extent necessary in the court's
opinion to render such term or provision enforceable, and the
Parties' rights and obligations will be construed and enforced
accordingly, preserving to the fullest permissible extent the
Parties' intent and agreements set forth in this Agreement.
(i) Amendment. Any terms and conditions varying from any Service Module
on any order or written notification from either Party will not be
effective or binding on the other Party. Each Service Module may be
amended or modified solely in a writing signed by an authorized
representative of each Party.
(j) Counterparts. Each Service Module may be executed in any number of
counterparts, each of which will be deemed an original, but all of
which taken together will constitute one single agreement between the
Parties.
[SIGNATURE PAGE FOLLOWS]
Master Services Agreement 57 BTC | State Street
IN WITNESS WHEREOF, each of BTC and State Street have executed or caused this
Master Services Agreement to be executed as of the date set forth above by its
duly authorized representative.
BLACKROCK INSTITUTIONAL TRUST STATE STREET BANK AND TRUST COMPANY
COMPANY, N.A. acting in its
capacity as investment advisor,
trustee, custodian and/or agent
with respect to the funds listed
on Exhibit A
------------------------------------ -----------------------------------
Name: Name: Xxxxxxx X. Xxxxxx
Title: Managing Director, Chief
Operating Officer Title: Executive Vice President
------------------------------------
Name:
Title: Managing Director, Global
Head of Operations
Master Services Agreement 58 BTC | State Street
