EXHIBIT (h)(1)
FORM OF TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of [ ] by and between PFPC
INC., a Massachusetts corporation ("PFPC"), and LMCG Funds, a Massachusetts
business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a
"Portfolio"), and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Directors
or Trustees to give Oral Instructions and Written Instructions
on behalf of the Fund. An Authorized Person's scope of
authority may be limited by setting forth such limitation in a
written document signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
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(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(h) "SHARES" mean the shares of beneficial interest of any series
or class of the Fund.
(i) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by
an Authorized Person and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors or Trustees,
approving the appointment of PFPC or its affiliates to provide
services to the Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Fund;
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(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC
is not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with
all applicable requirements of the Securities Laws and any laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Directors or
Trustees or of the Fund's shareholders, unless and until PFPC
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receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written
Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC or
differ from the Oral Instructions shall in no way invalidate
the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely
upon such Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, PFPC shall incur no liability to
the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the
other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC may request advice from counsel of its own
choosing (who may be counsel for the Fund, the Fund's
investment adviser or PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice it
receives from counsel, PFPC may rely upon and follow the
advice of
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counsel.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions it receives from
the Fund or from counsel and which PFPC believes, in good
faith, to be consistent with those directions or advice or
Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon
PFPC (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFPC to the Fund or to an
Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists,
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sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the Fund
or PFPC, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific or
technical information, design, process, procedure, formula, or
improvement that is commercially valuable and secret in the sense that
its confidentiality affords the Fund or PFPC a competitive advantage
over its competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source
code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding the foregoing,
information shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party
to a third party without restriction; (e) is required to be disclosed
by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (f) is relevant
to the defense of any claim or cause of action asserted against the
receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its
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obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Fund.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC. The
Fund acknowledges that PFPC may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this Agreement.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless PFPC
and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees
and disbursements and liabilities arising under the
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Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC takes in connection with the provision of services to the Fund.
Neither PFPC, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability) caused by
PFPC's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under
this Agreement, provided that in the absence of a finding to the
contrary the acceptance, processing and/or negotiation of a fraudulent
payment for the purchase of Shares shall be presumed not to have been
the result of PFPC's or its affiliates own willful misfeasance, bad
faith, gross negligence or reckless disregard of such duties and
obligations.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or
as may be specifically agreed to by PFPC and the Fund in a
written amendment hereto. PFPC shall be obligated to exercise
care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for
under this Agreement. PFPC shall be liable only for any
damages arising out of PFPC's failure to perform its duties
under this Agreement to the extent such damages arise out of
PFPC's willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC shall not be
liable for losses beyond its control, including without
limitation (subject to Section 11), delays or errors or loss
of data occurring by reason of circumstances beyond PFPC's
control, provided that PFPC
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has acted in accordance with the standard set forth in
Section 14(a) above; and (ii) PFPC shall not be under any duty
or obligation to inquire into and shall not be liable for the
validity or invalidity or authority or lack thereof of any
Oral Instruction or Written Instruction, notice or other
instrument which conforms to the applicable requirements of
this Agreement, and which PFPC reasonably believes to be
genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by
PFPC or its affiliates and (ii) PFPC's cumulative liability to
the Fund for all losses, claims, suits, controversies,
breaches or damages for any cause whatsoever (including but
not limited to those arising out of or related to this
Agreement) and regardless of the form of action or legal
theory shall not exceed the lesser of $100,000 or the fees
received by PFPC for services provided hereunder during the 12
months immediately prior to the date of such loss or damage.
(d) No party may assert a cause of action against PFPC or any of
its affiliates that allegedly occurred more than 12 months
immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
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(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with
shareholders to complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of
activity;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for on-line inquiry
response;
(ix) Mail duplicate confirmations to broker-dealers of
their clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to
the Fund;
(xi) Provide detailed data for underwriter/broker
confirmations;
(xii) Prepare periodic mailing of year-end tax and
statement information;
(xiii) Notify on a timely basis the investment adviser,
accounting agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) SERVICES PROVIDED BY PFPC UNDER ORAL INSTRUCTIONS OR WRITTEN
INSTRUCTIONS.
(i) Accept and post daily Share purchases and
redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when requested in
writing by the shareholder).
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(c) PURCHASE OF SHARES. PFPC shall issue and credit an account of
an investor, in the manner described in the Fund's prospectus,
once it receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder
account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Fund's custodian.
(d) REDEMPTION OF SHARES. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Directors
or Trustees. Shares shall be redeemed and payment therefor
shall be made in accordance with the Fund's prospectus, when
the recordholder tenders Shares in proper form and directs the
method of redemption. If Shares are received in proper form,
Shares shall be redeemed before the funds are provided to PFPC
from the Fund's custodian (the "Custodian"). If the
recordholder has not directed that redemption proceeds be
wired, when the Custodian provides PFPC with funds, the
redemption check shall be sent to and made payable to the
recordholder, unless:
(i) the surrendered certificate is drawn to the order of
an assignee or holder and transfer authorization is
signed by the recordholder; or
(ii) transfer authorizations are signed by the
recordholder when Shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the
broker-dealer and made payable to the broker-dealer on behalf
of its customer.
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(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a resolution of
the Fund's Board of Directors or Trustees authorizing the
declaration and payment of dividends and distributions, PFPC
shall issue dividends and distributions declared by the Fund
in Shares, or, upon shareholder election, pay such dividends
and distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction
and payment of the required amount of funds to be withheld in
accordance with any applicable tax laws or other laws, rules
or regulations. PFPC shall mail to the Fund's shareholders
such tax forms and other information, or permissible
substitute notice, relating to dividends and distributions
paid by the Fund as are required to be filed and mailed by
applicable law, rule or regulation. PFPC shall prepare,
maintain and file with the IRS and other appropriate taxing
authorities reports relating to all dividends above a
stipulated amount paid by the Fund to its shareholders as
required by tax or other law, rule or regulation.
(f) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders,
checks and applications.
(ii) PFPC may arrange, in accordance with the prospectus,
for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Fund has exchange
privileges;
- Automatic redemption from an account where
that shareholder participates in a automatic
redemption plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
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(g) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written
Instructions, PFPC shall mail all communications by the Fund
to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards
for the meetings of the Fund's shareholders.
(h) RECORDS. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current
maintenance of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform
any calculations required by this Agreement.
(i) LOST OR STOLEN CERTIFICATES. PFPC shall place a stop notice
against any certificate reported to be lost or stolen and
comply with all applicable federal regulatory
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requirements for reporting such loss or alleged
misappropriation. A new certificate shall be registered and
issued only upon:
(i) The shareholder's pledge of a lost instrument bond or
such other appropriate indemnity bond issued by a
surety company approved by PFPC; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect PFPC and its
affiliates.
(j) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from
any Fund shareholder to inspect stock records, PFPC will
notify the Fund and the Fund will issue instructions granting
or denying each such request. Unless PFPC has acted contrary
to the Fund's instructions, the Fund agrees to and does hereby
release PFPC from any liability for refusal of permission for
a particular shareholder to inspect the Fund's stock records.
(k) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES. Upon
receipt of Written Instructions, PFPC shall cancel outstanding
certificates surrendered by the Fund to reduce the total
amount of outstanding shares by the number of shares
surrendered by the Fund.
(l) LOST SHAREHOLDERS. PFPC shall perform such services as are
required in order to comply with Rules 17a-24 and 17Ad-17 of
the 1934 Act (the "Lost Shareholder Rules"), including, but
not limited to, those set forth below. PFPC may, in its sole
discretion, use the services of a third party to perform some
of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
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(iii) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the
Lost Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility
for any escheatment services.
(m) PRINT MAIL. In addition to performing the foregoing services,
the Fund hereby engages PFPC as its exclusive print/mail
service provider with respect to those items identified in the
written document of print/mail fees as may be agreed to from
time to time by the Fund and PFPC .
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written
above and shall continue for a period of three (3) years (the
"Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years
("Renewal Terms") each, unless the Fund or PFPC Group provides
written notice to the other of its intent not to renew. Such
notice must be received not less than ninety (90) days prior
to the expiration of the Initial Term or the then current
Renewal Term.
(c) In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent will be borne
by the Fund.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party")
the other party (the "Non-Defaulting Party") may
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give written notice thereof to the Defaulting Party, and if
such material breach shall not have been remedied within
thirty (30) days after such written notice is given, then the
Non-Defaulting Party may terminate this Agreement by giving
thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under
this Agreement or otherwise against the Defaulting Party.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
the Fund, at 00 Xxxxx Xxxxxx - Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxx Xxxxxxx or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. If notice is
sent by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or of PNC Bank Corp., provided that PFPC gives the Fund 30 days
prior written notice of such assignment or delegation.
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20. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or
engage, for the Fund or any other person, any of PFPC's employees.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(c) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in
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Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(e) PARTIAL INVALIDITY. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or implied, made to the Fund or any
other person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this
Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this
Agreement.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
25. XXXXXXXXxx.xxx SERVICES. PFPC shall provide to the Fund the internet
access services as set forth on Exhibit B attached hereto and made a
part hereof, as such Exhibit B may be amended from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
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PFPC INC.
By:
------------------------------
Title:
---------------------------
LMCG FUNDS
By:
------------------------------
Title:
---------------------------
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EXHIBIT A
PORTFOLIOS
Name: Shares Classes:
----- ---------------
LMCG Small Cap Growth Fund A
LMCG Mid Cap Growth Fund A
LMCG Small Cap Tax-Sensitive Fund A
LMCG Technology Fund A
LMCG Internet Fund A
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EXHIBIT B
IMPRESSNet.com-Registered Trademark- SERVICES
1. DEFINITIONS. Any term not herein defined shall have the meaning given
such term in the Agreement. The following definitions shall apply to this
Exhibit B:
(a) "End-User" shall mean any Shareholder or Financial Intermediary or
broker-dealer back office operation that accesses the PFPC System via
IMPRESSNet.com-Registered Trademark-.
(b) "Financial Intermediary" shall mean any investment advisor,
broker-dealer, financial planner or any other person authorized by a
Shareholder or the Fund to act on behalf of a Shareholder.
(c) "Fund Web Site" means the collection of electronic documents,
electronic files and pages residing on any computer system(s) maintained on
behalf of the Fund, connected to the Internet and accessible by hypertext link
through the World Wide Web to and from IMPRESSNet.com-Registered Trademark-.
(d) "IMPRESSNet.com-Registered Trademark- Services" means the
services identified in Section 2 hereof to be provided by PFPC utilizing the
Fund Web Site, the Internet and certain software, equipment and systems
provided by PFPC, telecommunications carriers and security providers which
have been certified by ICSA or a nationally-recognized audit firm (including
but not limited to firewalls and encryption), whereby Inquires may be
performed and Transactions may be requested by accessing
IMPRESSNet.com-Registered Trademark- via hypertext link from the Fund Web
Site.
(e) "Inquiry" shall mean any access to the PFPC System via
IMPRESSNet.com-Registered Trademark- initiated by an End-User which is not a
Transaction.
(f) "Internet" shall mean the communications network comprised of
multiple communications networks linking education, government, industrial and
private computer networks.
(g) "IMPRESSNet.com-Registered Trademark-" means the collection of
electronic documents, electronic files and pages residing on PFPC's computer
system(s) (or those elements of the computer system of one or more Internet
Service Providers ("ISPs") retained by PFPC and necessary for PFPC's services
hereunder), connected to the Internet and accessible by hypertext link from
the Funds Web Site through the World Wide Web, where the Inquiry and
Transaction data fields and related screens provided by PFPC may be viewed.
(h) "Shareholder" means the record owner or authorized agent of the
record owner of shares of the Fund.
(i) "Transaction" shall mean purchase, redemption, exchange or any
other activity involving the movement of Shares initiated by an End-User,
provided however, it being
21
understood that broker-dealer back office operations will not be permitted to
initiate Transactions.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit B and
the Agreement, PFPC shall provide or perform, or shall retain other persons to
provide or perform, the following, at PFPC's expense (unless otherwise provided
herein):
(a) provide all computers, telecommunications equipment, encryption
technology and other materials and services reasonably necessary to develop
and maintain IMPRESSNet.com-Registered Trademark- to permit persons to be
able to view information about the Fund and to permit End-Users with
appropriate identification and access codes to perform Inquiries and initiate
Transactions;
(b) address and mail, at the Fund's expense, notification and
promotional mailings and other communications provided by the Fund to
Financial Intermediaries and/or Shareholders regarding the availability of
IMPRESSNet.com-Registered Trademark- Services;
(c) upon availability of such service, prepare and process new
account applications received through IMPRESSNet.com-Registered Trademark-
from Shareholders determined by the Fund to be eligible for such services;
(d) process the set up of personal identification numbers ("PIN"),
as described in the IMPRESSNet.com-Registered Trademark- Product Guide
provided to the Fund, which shall include verification of initial
identification numbers issued, reset and activate personalized PIN's and
reissue new PIN's in connection with lost PIN's;
(e) provide installation services which shall include, review and
approval of the Fund's network requirements, recommending method of
establishing (and, as applicable, cooperate with the Fund to implement and
maintain) a hypertext link between IMPRESSNet.com-Registered Trademark- and
the Fund Web Site and testing the network connectivity and performance;
(f) establish systems to guide, assist and permit End-Users who
access IMPRESSNet.com-Registered Trademark- from the Fund Web Site to
electronically perform Inquires and create and transmit Transaction requests
to PFPC;
(f) deliver to the Fund one (1) copy of the PFPC
IMPRESSNet.com-Registered Trademark- Product Guide, as well as all updates
thereto on a timely basis;
(g) deliver a monthly billing report to the Fund, which shall include
a report of Inquiries and Transactions;
(h) provide a form of encryption that is generally available to the
public in the U.S. for standard Internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable for this
type of information and data) and exercise commercially reasonable efforts to
attempt to maintain the security and integrity of the PFPC Web Site;
22
(i) exercise reasonable efforts to maintain all on-screen disclaimers
and copyright, trademark and service xxxx notifications, if any, provided by the
Fund to PFPC in writing from time to time, and all "point and click" features of
the PFPC Web Site relating to Shareholder acknowledgment and acceptance of such
disclaimers and notifications;
(j) provide periodic site visitation (hit reports) and other
information regarding End-User activity under this Agreement as agreed by PFPC
and the Fund from time to time;
(k) monitor the telephone lines involved in providing
IMPRESSNet.com-Registered Trademark- Services and inform the Fund promptly of
any malfunctions or service interruptions;
(l) PFPC shall periodically scan its Internet interfaces and
IMPRESSNet.com-Registered Trademark- for viruses and promptly remove any such
viruses located thereon;
(m) maintenance and support of IMPRESSNet.com-Registered Trademark-,
which includes providing error corrections, minor enhancements and interim
upgrades to IMPRESSNet.com-Registered Trademark- which are made generally
available to IMPRESSNet.com-Registered Trademark- customers and providing
help desk support to provide assistance to Fund employees with the Fund's use
of IMPRESSNet.com-Registered Trademark-;
Maintenance and support shall NOT include (i) access to or use of
any substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made generally
available by PFPC to IMPRESSNet.com-Registered Trademark- clients, as
determined solely by PFPC; or (ii) maintenance of customized features; and
(n) the Fund recognizes and acknowledges that (i) a logon I.D. and
PIN are required by End-Users to access PFPC's IMPRESSNet.com-Registered
Trademark-; (ii) End-User's Web Browser and ISP must support Secure Sockets
Layer (SSL) encryption technology; and (iii) PFPC will not provide any
software for access to the Internet; software must be acquired from a
third-party vendor.
3. FUND RESPONSIBILITIES. Subject to the provisions of this Exhibit B and
the Agreement, the Fund shall at its expense (unless otherwise provided herein):
(a) provide, or retain other persons to provide, all computers,
telecommunications equipment, encryption technology and other materials,
services, equipment and software reasonably necessary to develop and maintain
the Fund Web Site, including the functionality necessary to maintain the
hypertext links to IMPRESSNet.com-Registered Trademark-;
(b) promptly provide PFPC written notice of changes in Fund policies
or procedures requiring changes to the IMPRESSNet.com-Registered Trademark-
Services;
(c) work with PFPC to develop Internet marketing materials for
End-Users and forward a copy of appropriate marketing materials to PFPC;
(d) revise and update the applicable prospectus(es) and other pertinent
materials, such as user agreements with End-Users, to include the appropriate
consents, notices and disclosures
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for IMPRESSNet.com-Registered Trademark- Services, including disclaimers and
information reasonably requested by PFPC;
(e) maintain all on-screen disclaimers and copyright, trademark and
service xxxx notifications, if any, provided by PFPC to the Fund in writing
from time to time, and all "point and click" features of the Fund Web Site
relating to acknowledgment and acceptance of such disclaimers and
notifications; and
(f) design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to
IMPRESSNet.com-Registered Trademark- and the various Inquiry and Transaction
web pages and otherwise make the Fund Web Site available to End-Users.
4. STANDARDS OF CARE FOR INTERNET SERVICES. Notwithstanding anything to
the contrary contained in the Agreement, although PFPC shall comply with the
standard of care specified in the Agreement and above in providing
IMPRESSNet.com-Registered Trademark- Services, PFPC shall not be obligated to
ensure or verify the accuracy or actual receipt, or the transmission, of any
data or information contained in any transmission via
IMPRESSNet.com-Registered Trademark- Services or the consummation of any
Inquiry or Transaction request not actually received by PFPC. The Fund shall
advise End-Users to promptly notify the Fund or PFPC of any errors or
inaccuracies in Shareholder data or information transmitted via
IMPRESSNet.com-Registered Trademark- Services.
5. ADDITIONAL FEES FOR IMPRESSNet.com-Registered Trademark- SERVICES.
As consideration for the performance by PFPC of IMPRESSNet.com-Registered
Trademark- Services, the Fund will pay the fees set forth in a separate fee
letter as agreed between the parties from time to time.
6. PROPRIETARY RIGHTS.
(a) Each of the parties acknowledges and agrees that it obtains no
rights in or to any of the software, hardware, processes, trade secrets,
proprietary information or distribution and communication networks of the other
under this Exhibit B. Any software, interfaces or other programs a party
provides to the other hereunder shall be used by such receiving party only
during the term of the Agreement and only in accordance with the provisions of
this Exhibit B and the Agreement. Any interfaces, other software or other
programs developed by one party shall not be used directly or indirectly by or
for the other party or any of its affiliates to connect such receiving party or
any affiliate to any other person, without the first party's prior written
approval, which it may give or withhold in its sole discretion. Except in the
normal course of business and in conformity with Federal copyright law or with
the other party's consent, neither party nor any of its affiliates shall
disclose, use, copy, decompile or reverse engineer any software or other
programs provided to such party by the other in connection herewith.
(b) The Fund Web Site and IMPRESSNet.com-Registered Trademark- may
contain certain intellectual property, including, but not limited to, rights
in copyrighted works, trademarks and trade dress that is the property of the
other party. Each party retains all rights in such intellectual property that
may reside on the other party's web site, not including any intellectual
property provided by or otherwise obtained from such other party. To the
extent the intellectual property of one party is cached to expedite
communication, such party grants to the other a limited, non-exclusive,
24
non-transferable license to such intellectual property for a period of time
no longer than that reasonably necessary for the communication. To the extent
that the intellectual property of one party is duplicated within the other
party's web site to replicate the "look and feel", "trade dress" or other
aspect of the appearance or functionality of the first site, that party
grants to the other a limited, non-exclusive, non-transferable license to
such intellectual property for the duration of the Agreement. This license is
limited to the intellectual property needed to replicate the appearance of
the first site and does not extend to any other intellectual property owned
by the owner of the first site. Each party warrants that it has sufficient
right, title and interest in and to its web site and its intellectual
property to enter into these obligations, and that to its knowledge, the
license hereby granted to the other party does not and will not infringe on
any U.S. patent, U.S. copyright or other U.S. proprietary right of a third
party.
7. REPRESENTATION AND WARRANTY. Neither party shall knowingly insert
into any interface, other software, or other program provided by such party
to the other hereunder, or accessible on IMPRESSNet.com-Registered Trademark-
or Fund Web Site, as the case may be, any "back door," "time bomb," "Trojan
Horse," "worm," "drop dead device," "virus" or other computer software code
or routines or hardware components designed to disable, damage or impair the
operation of any system, program or operation hereunder. For failure to
comply with this warranty, the non-complying party shall immediately replace
all copies of the affected work product, system or software. All costs
incurred with replacement including, but not limited to cost of media,
shipping, deliveries and installation shall be borne by such party.
8. LIABILITY LIMITATIONS; INDEMNIFICATION.
(a) THE INTERNET. Each party acknowledges that the Internet is an
unsecured, unstable, unregulated, unorganized and unreliable network, and that
the ability of the other party to provide or perform services or duties
hereunder is dependent upon the Internet and equipment, software, systems, data
and services provided by various telecommunications carriers, equipment
manufacturers, firewall providers, encryption system developers and other
vendors and third parties. Each party agrees that the other shall not be liable
in any respect for the functions or malfunctions of the Internet. Each party
agrees the other shall not be liable in any respect for the actions or omissions
of any third party wrongdoers (i.e., hackers not employed by such party or its
affiliates) or of any third parties involved in the Internet Services and shall
not be liable in any respect for the selection of any such third party, unless
such party breached the standard of care specified herein with respect to that
selection.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS
SPECIFICALLY PROVIDED IN SECTIONS 2 AND 4, ALL SOFTWARE AND SYSTEMS DESCRIBED IN
THIS EXHIBIT B ARE PROVIDED "AS-IS" ON AN "AS-AVAILABLE" BASIS, AND PFPC HEREBY
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
9. MISCELLANEOUS.
25
(a) INDEPENDENT CONTRACTOR. The parties to this Agreement are and
shall remain independent contractors, and nothing herein shall be construed
to create a partnership or joint venture between them and none of them shall
have the power or authority to bind or obligate the other in any manner not
expressly set forth herein. Any contributions to IMPRESSNet.com-Registered
Trademark- by the Fund and any contributions to the Fund Web Site by PFPC
shall be works for hire pursuant to Section 101 of the Copyright Act.
(b) CONFLICT WITH AGREEMENT. In the event of a conflict between
specific terms of this Exhibit B and the Agreement, this Exhibit B shall
control as to IMPRESSNet.com-Registered Trademark- Services.
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