Exhibit 13 (b)(iii)
TRANSFER AGENT INTERACTIVE CLIENT SERVICES AGREEMENT
AGREEMENT made as of October 13, 2003 (the "Effective Date") by and
between ALPS Mutual Funds Services, Inc., a Colorado corporation, having its
principal place of business at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
("ALPS") and the Westcore Trust, a Massachusetts business trust (the "Trust")
having its principal place of business at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000. ALPS and the Trust are together referred to herein as the
"Parties" and individually as the "Party".
WHEREAS, ALPS is a provider of transfer agency services to the mutual
fund industry utilizing proprietary and licensed computer software programs to
allow shareholders to access their account information and real-time transaction
processing.
WHEREAS, the Trust desires to utilize ALPS' Interactive Client
Services ("ICS") to provide the Trust's shareholders with access to shareholder
account information and real-time transaction processing capabilities in
accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Parties hereby agree as follows.
ARTICLE I
DEFINITIONS
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The following definitions shall apply to this Agreement. Additional
terms may be defined in the Agreement and in the exhibits, which describe the
ICS to be provided by ALPS for the Trust.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly Controlling, Controlled by or under common Control with
such Person.
"Fund(s)" shall mean the various registered investment companies
(mutual funds) for which the Trust has designated to participate in ICS, and as
listed on Schedule 1, attached hereto.
"Investment Company Web Site" shall mean the collection of electronic
documents or pages residing on the computer system of an Internet Service
Provider ("ISP") hired by Trust connected to the Internet and accessible by
hypertext link through the World Wide Web, where Persons may view information
about the Funds and access the various Transaction screens provided by Trust.
"Person" shall mean an individual, corporation, partnership,
association, trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Security Procedures" shall mean the procedures, including the use of
encryption technology, implemented for purposes of protecting the integrity,
confidentiality or secrecy of, and the unauthorized interception, corruption,
use of, or access to, any data or information transmitted via ICS.
"Transactions" shall mean account inquiries, purchases, redemptions
through Automated Clearing House, fed wire, or check to the address of record
for the Fund account, exchanges and other transactions offered through ICS.
"User(s)" shall mean record owners or authorized agents of record
owners of shares of a Fund, including brokers, investment advisors and other
financial intermediaries.
ARTICLE II
USE OF ICS BY THE TRUST
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Section 2.1 Selection of ICS, ALPS will perform, and the Trust has
selected, the ICS services described on Exhibit A attached to this Agreement.
Section 2.2 Responsibilities of ALPS. During the Term and subject to
the provisions of this Agreement, ALPS shall, at its expense (unless otherwise
provided for herein): (i) provide, or hire other Persons to provide, all
computers, telecommunications equipment and other equipment and software
reasonably necessary to develop and maintain the ICS; and (ii) deliver a monthly
billing report to the Trust, which shall include a report of Transactions, by
type, processed through ICS.
Section 2.3 Responsibilities of the Trust. During the Term and subject
to the provisions of this Agreement, the Trust shall at its expense (unless
otherwise provided for herein) fulfill the Trust obligations, if any, set forth
in Exhibit A to this Agreement.
Section 2.4 Change in Designated Funds. Upon thirty (30) days prior
notice to ALPS, the Trust may change the Funds designated to participate in ICS
by delivering to ALPS, in writing, a revised list of participating Funds.
Section 2.5 Scope of ALPS' Obligations. ALPS shall at all times use
reasonable commercial efforts in performing ICS under this Agreement. In the
absence of willful misconduct, knowing violations of applicable law, reckless
disregard of its duties under this Agreement, or negligence on its part in the
performance of ICS, ALPS shall not be liable for any loss or damage suffered in
connection with the use of the ICS under this Agreement. With respect to those
actions or services delineated in Exhibit A and all other instructions given to
ALPS by the Trust, ALPS shall be presumed to have exercised reasonable
commercial efforts if it has acted in accordance with Exhibit A and other
instructions provided by the Trust. With respect to any claims for losses,
damages, costs or expenses which may arise directly or indirectly from Security
Procedures which ALPS has implemented or omitted, ALPS shall be presumed to have
used reasonable commercial efforts if it has followed, in all material respects,
at least those Security Procedures described in Exhibit B to this Agreement.
ALPS may, but shall not be required to, modify such Security Procedures from
time to time to the extent it believes, in good faith, that such modifications
will enhance the security of ICS. All data and information transmissions via ICS
are for informational purposes only, and are not intended to satisfy regulatory
requirements or comply with any laws, rules, requirements or standards of any
federal, state or local governmental authority, agency or industry regulatory
body, including the securities industry, which compliance is the sole
responsibility of the Trust and each Fund. The Trust acknowledges and agrees
that its Users are responsible for verifying the accuracy and receipt of all
data or information transmitted via ICA. The Trust is responsible for advising
its Users of their responsibility for promptly notifying the Funds' transfer
agent of any errors or inaccuracies relating to shareholder data or information
transmitted via ICS.
ARTICLE III
FEES
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As consideration for the performance by ALPS of the ICS, the Trust will
pay ALPS the fees as set forth on Exhibit C to this Agreement.
ARTICLE IV
PROPRIETARY RIGHTS
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Section 4.1 ALPS' Property. The Trust 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
ALPS. Any software ALPS provides to the Trust pursuant to this Agreement shall
be used by the Trust only during the term of this Agreement and only in
accordance with the provisions of this Agreement to provide connectivity to and
through ALPS, and shall not be used by the Trust to provide connectivity to or
through any other system or Person. Any interfaces and software developed by
ALPS shall not be used to connect the Trust to any transfer agency system or any
other Person without ALPS' prior written approval. Except with ALPS' consent or
in conformity with Federal copyright laws, the Trust shall not copy, decompile
or reverse engineer any software provided to the Trust by ALPS. The Trust also
agrees not to take any action which would mask, delete or otherwise alter any of
ALPS' on-screen disclaimers and copyright, trademark and service xxxx
notifications provided by ALPS, in writing, from time to time, or any "point and
click" features relating to User acknowledgment and acceptance of such
disclaimers and notifications.
Section 4.2 Investment Company Web Site. The web pages that make up the
Investment Company Web Site contain intellectual property, including, but not
limited to, copyrighted works, trademarks, and trade dress, that is the property
of the Trust. The Trust retains all rights in the intellectual property that
resides on the Investment Company Web Site, not including any intellectual
property provided by or otherwise obtained from ALPS. To the extent that the
intellectual property of the Trust is duplicated within the ALPS Web Site to
replicate the "look and feel," trade dress or other aspect of the appearance or
functionality of the Investment Company Web Site, the Trust grants to ALPS a
non-exclusive, non-transferable license to such intellectual property for the
duration of this Agreement. This license is limited to the intellectual property
of the Trust needed to replicate the appearance of the Investment Company Web
Site and does not extend to any other intellectual property owned by the Trust.
Section 4.3 IP Warranty. Except with respect to the design and
graphical elements and Web pages provided to ALPS by the Trust, ALPS warrants to
Trust that ALPS owns or has sufficient license or other legal rights in all
software and intellectual property used by ALPS at its facilities to provide the
ICS, and such use by ALPS does not infringe or otherwise violate the U.S.
copyrights of any other party. In the event one or more ICS' are not useable by
Customer as a result of a breach of the foregoing warranty, then ALPS will use
reasonable commercial efforts to: (a) procure for the Trust the right to
continue using the ICS or infringing portion thereof, or (b) modify the ICS so
that it becomes non-infringing but has substantially the same capabilities, or
(c) replace the ICS or infringing part thereof by other systems of similar
capability within a reasonable period of time under the circumstances. If ALPS
is not able to satisfy the foregoing requirements, then, as its sole remedy,
Trust will be entitled to terminate this Agreement immediately.
ARTICLE V
TERM AND TERMINATION
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Section 5.1 Term. This Agreement shall be effective as of the Effective
Date and shall continue in full force and effect for twelve (12) months
following the Effective Date (the "Initial Term"). This Agreement shall
automatically renew at the end of the Initial Term for additional, successive
twelve (12)-month terms (each, a "Renewal Term") unless terminated by either
party on not less than sixty (60) days prior written notice to the other party.
The Initial Term and any Renewal Term(s) are referred to herein as the Term.
Section 5.2 Termination. Throughout the Term, either Party shall have
the right to terminate this Agreement on written notice to the other Party of
the other Party's material breach of this Agreement and such Party's failure to
cure such breach within thirty (30) days. This Agreement shall automatically
terminate upon the termination of the Transfer Agency Agreement between the
Trust and ALPS.
Section 5.3 Effect of Termination. In the event of a termination under
the provisions of this Article V, the Parties will have no continuing
obligations to one another other than the obligation to return to one another
the confidential or proprietary materials of the other in their possession.
ARTICLE VI
INDEMNIFICATION; LIABILITY LIMITATIONS
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Section 6.1 No Other Warranties. Except as otherwise expressly stated
in section 2.5 of this Agreement, the ICS and all software and systems described
in this Agreement and its Exhibits are provided "as-is," on an "as available"
basis, and ALPS hereby specifically disclaims any and all representations or
warranties, express or implied, regarding services provided by ALPS hereunder,
including any implied warranty of title, merchantability or fitness for a
particular purpose and implied warranties arising from course of dealing or
course of performance.
Section 6.2 Limitation of Liability. Under no circumstances shall ALPS
be liable for indirect, incidental, consequential, special, exemplary or
punitive damages (even if ALPS has been advised of or has foreseen the
possibility of such damages), arising from the use or inability to use the ICS
or under any provision of this Agreement, such as, but not limited to, loss of
revenue or anticipated profits or lost business. Without limiting any of the
foregoing terms of this Section, in no event shall ALPS be liable under this
Agreement in tort or otherwise for an amount exceeding the aggregate fees
actually received by ALPS pursuant to Article III during the most recent Term of
this Agreement.
Section 6.3 Indemnity. The Trust hereby indemnifies and holds ALPS
harmless from, and shall defend it against any and all claims, demands, costs,
expenses and other liabilities, including reasonable attorneys' fees, arising in
connection with the use of, or inability to use, the ICS by any User, except to
the extent such liabilities result directly from the negligence or intentional
misconduct of ALPS in the performance of the ICS.
ARTICLE VII
CONFIDENTIALITY
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Section 7.1 Confidential Information. Each of the Parties hereby
acknowledges that in the course of performing its obligations hereunder, the
other may disclose to it certain information and know-how of a technical,
financial, operational or other sort, that is nonpublic and otherwise
confidential or proprietary to the disclosing Party. This Agreement, and in
particular, all ALPS' Security Procedures and fee schedules, shall be considered
confidential and proprietary. Each Party acknowledges that any such proprietary
or confidential information disclosed to it is of considerable commercial value
and that the disclosing Party would likely be economically or otherwise
disadvantaged or harmed by the direct or indirect use or disclosure thereof,
except as specifically authorized by the disclosing Party. Each Party therefore
agrees to keep in strict confidence all such information that may from time to
time be disclosed to it, and agrees not to use such information except as
expressly permitted hereby or to disclose such information to any third Party
for any purpose without the prior consent of the other. The provisions of this
Section 7.1 shall not apply to any information if and to the extent it was (i)
independently developed by the receiving Party as evidenced by documentation in
such Party's possession, (ii) lawfully received by it free of restrictions from
another source having the right to furnish the same, (iii) generally known or
available to the public without breach of this Agreement by the receiving Party
or (iv) known to the receiving Party free of restriction at the time of such
disclosure. The Parties agree that immediately upon termination of this
Agreement, without regard to the reason for such termination, the Parties shall
forthwith return to one another all written materials and computer software,
which are the property of the other Party.
Section 7.2 Specific Performance. Each of the Parties agrees that the
non-breaching Party would not have an adequate remedy at law in the event of the
other Party's breach or threatened breach of its obligations under Section 7.1,
and that the non-breaching Party would suffer irreparable injury and damage as a
result of any such breach. Accordingly, in the event either Party breaches or
threatens to breach the obligations set forth in Section 7.1, in addition to and
not in lieu of any legal or other remedies such Party may pursue hereunder or
under applicable law, each Party hereby consents to the granting of equitable
relief (including the issuance of a temporary restraining order, preliminary
injunction or permanent injunction) against it by a court of competent
jurisdiction, without the necessity of proving actual damages or posting any
bond or other security therefor, prohibiting any such breach or threatened
breach. In any proceeding upon a motion for such equitable relief, a Party's
ability to answer in damages shall not be interposed as a defense to the
granting of such equitable relief.
ARTICLE VIII
FORCE MAJEURE
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The Trust acknowledges that the Internet is an insecure, unstable,
unregulated, unorganized and unreliable environment, and that the ability of
ALPS to deliver ICS is dependent upon the Internet and equipment, software,
systems, data and services provided by various telecommunications carriers,
equipment manufacturers, firewall providers and encryption system developers and
other vendors and third parties. ALPS shall not be liable for any delays or
failures to perform any of its obligations hereunder to the extent that such
delays or failures are due to circumstances beyond its reasonable control,
including acts of God, strikes, riots, acts of war, power failures, functions or
malfunctions of the Internet, telecommunications services, firewalls, encryption
systems and security devices, or governmental regulations imposed after the date
of this Agreement.
ARTICLE IX
MISCELLANEOUS
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Section 9.1 Governing Law; Jurisdiction. This Agreement shall be
interpreted, construed and enforced in all respects in accordance with the laws
of the state of Colorado, without reference to the conflict of laws provisions
thereof.
Section 9.2 Headings. Headings used herein are for convenience of
reference only, and shall not be used in the construction or interpretation
hereof.
Section 9.3 Counterparts: This Agreement may be executed in
counterparts, all of which together shall be deemed one and the same Agreement.
Section 9.4 Parties' Independent Contractors. 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 of authority to bind or obligate the others in any
manner not expressly set forth herein.
Section 9.5 Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby unless either of the Parties shall, in its
reasonable determination, conclude that it shall be materially prejudiced by
such holding of invalidity, illegality or unenforceability, in which case such
Party may terminate this Agreement by thirty (30) days written notice to the
other.
Section 9.6 No Waiver. No term or provision hereof shall be deemed
waived and no breach excused unless such waiver or consent shall be in writing
and signed by the Party claimed to have waived or consented. Any consent by any
Party to, or waiver of, a breach by the other, whether express or implied, shall
not constitute a consent to, waiver of, or excuse for any other different or
subsequent breach.
Section 9.7 Assignment. Neither this Agreement nor all or any of the
rights and obligations of either Party hereunder shall be assigned, whether by
agreement or by operation of law to any Person other than an Affiliate of the
assigning Party, without the prior written consent of the other Party, and any
attempt to do so shall be void. No such permitted assignment shall relieve the
assigning Party of its obligations under this Agreement. This Agreement shall be
binding upon and inure to the benefit of the respective successors, permitted
assigns and legal representatives of the Parties hereto.
Section 9.8 Notices. All notices, requests or communications required
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery, if delivered personally against written receipt, (ii) three (3)
days after posting by certified mail, postage prepaid, return receipt requested,
(iii) upon confirmed receipt, if delivered by telecopier or (iv) the next day if
delivered by a recognized overnight commercial courier, such as Federal Express
or Airborne, addressed in each instance to the Parties at the addresses set
forth below the signatures of the parties at the end of this Agreement (or at
such other addresses as shall be given by either of the Parties to the other in
accordance with this Section 9.8).
Section 9.9 Massachusetts Business Trust. The names "Westcore Trust"
and "Trustees of Westcore Trust" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under the Amended and Restated Declaration of Trust dated November 19, 1987
as amended July 16, 1990 and as may be further amended from time to time which
is hereby referred to and a copy of which is on file at the office of the State
Secretary of the Commonwealth of Massachusetts and the principal office of the
Trust. The obligations of "Westcore Trust" entered into in the name or on behalf
thereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, shareholders, or representatives of the Trust personally, but bind
only the Trust Property, and all persons dealing with any class of shares of the
Trust must look solely to the Trust Property belonging to such class for the
enforcement of any claims against the Trust.
Section 9.10 Entire Agreement. This Agreement and its Exhibits together
constitute the complete understanding and agreement of the Parties with respect
to the subject matter hereof, and shall supersede all prior communications with
respect thereto. They may not be modified, amended or in any way altered, except
in a writing signed by both Parties. No agent of any Party hereto is authorized
to make any representation, promise or warranty inconsistent with the terms
hereof.
IN WITNESS WHEREOF, the Parties hereto have set their hands by their
authorized representatives as of the year and date first written above.
ALPS MUTUAL FUNDS SERVICES, INC.
By: /s/ XXXXXX X. MAY
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Name: Xxxxxx X. May
Title: Senior Vice President
Address: 0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 303.623.7850
WESTCORE TRUST
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Title: Treasurer
Address: 0000 00xx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000
Telephone: 000 000 0000
Facsimile: 000 000 0000
SCHEDULE 1
LIST OF FUNDS
Black Rock Money Market Portfolio
Growth Fund
Plus Bond Fund
MIDCO Growth Fund
Blue Chip Fund
Small Cap Opportunity Fund
Flexible Income Fund
Colorado Tax Exempt Fund
Mid Cap Opportunity Fund
International Frontier Fund
Select Fund
