MFx ACCESS AGREEMENT
THIS AGREEMENT is made and entered into as of this 20th day of December,
2001, by and between Fort Pitt Capital Funds, a Delaware business trust (the
"Trust") and U.S. Bancorp Fund Services, LLC, a Wisconsin limited liability
company ("USBFS").
WHEREAS, the Trust desires access to one or more computer systems listed on
Exhibit A hereto (as amended or supplemented from time to time) that are
provided and maintained by USBFS (each a "System", collectively the "Systems");
and
WHEREAS, USBFS agrees to allow the Trust access to one or more of the
Systems based on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Duties and Responsibilities of USBFS
USBFS shall:
A. Provide access to each System during the regular business hours of
USBFS or such other time periods as the Trust requires in its sole
discretion.
B. Supply necessary software to access the Systems.
C. Provide training and connectivity support as the Trust requires in its
sole discretion. D. Maintain all Systems and provide data security for
the Trust's access.
2. Duties and Responsibilities of the Trust
The Trust shall:
A. Provide and maintain, at its own expense, one or more personal
computers for accessing the Systems that will accommodate and be
compatible with the software provided by USBFS.
B. Follow any and all procedures necessary to access each of the Systems
as may be set forth in any user guide or instruction manual provided
and which may be amended or supplemented from time to time.
C. Provide for the security of all codes and system access mechanisms
relating to each of the Systems and implement such security procedures
and/or devices to ensure the integrity of the Systems being accessed.
3. System Maintenance
The Trust understands that USBFS will have to perform periodic maintenance
to the hardware and software of the Systems being accessed, which may cause
temporary service interruptions. USBFS shall notify the Trust of all
planned outages and, to the extent possible, will perform any necessary
maintenance during non-business hours.
4. Compensation
USBFS shall be compensated for providing the services and access to the
Systems set forth in this Agreement will respect to the services identified
by the Trust in accordance with the fee schedule set forth on Exhibit A
hereto (as amended or supplemented from time to time). The Trust shall pay
all fees within thirty (30) calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Trust shall, in good faith, notify USBFS in writing within thirty (30)
calendar days following receipt of each invoice if the Trust is disputing
any amounts set forth in such invoice. The Trust shall pay such disputed
amounts within ten (10) calendar days after the parties agree upon the
amount to be paid. With the exception of any fee or expense the Trust is
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of one and one-half percent (1 1/2%) per month, after the
expiration of said 30 days from the Trust's receipt of the invoice until
fully paid.
5. Confidentiality
The Trust acknowledges on behalf of itself and its trustees, officers,
agents and employees that the Systems it accesses along with the various
procedures constitute confidential information of USBFS. All such knowledge
and information concerning USBFS and the Systems, including but not limited
to codes and storage access information, which the Trust and its trustees,
officers, agents, or employees may acquire in connection with this
Agreement, shall be held as confidential and may be used by the Trust only
as is necessary to access information from the various Systems covered by
this Agreement. The Trust shall take the appropriate actions to protect the
confidentiality of such knowledge and information.
The Trust acknowledges that all programs, software, manuals, and other
written information provided pursuant to this Agreement shall remain at all
times the exclusive property of USBFS.
USBFS acknowledges that in the course of fulfilling its duties hereunder,
it may come into possession of personal financial information, and in
accordance with Section 248.11 of Regulation S-P (17 CFR 248.1-248.30),
USBFS will not directly or indirectly through an affiliate, disclose any
non-public personal information, as defined in Reg. S-P, received from the
Trust regarding confidential information, to any person that is not
affiliated with the Trust or with USBFS and, provided that, any such
information disclosed to an affiliate of USBFS shall be under the same
limitations on non-disclosure.
6. Indemnification; Limitation of Liability
The duties and responsibilities of USBFS under this Agreement are limited
to those described herein. USBFS shall not be liable for any loss or
damages resulting from fraudulent, unauthorized, or otherwise improper use
of any identification or security code or systems access mechanisms
assigned by USBFS in connection with access to any of the Systems set forth
on Exhibit A.
In the event of a mechanical breakdown, failure of communication, or power
supplies reasonably beyond its control, USBFS shall take all reasonable
steps to minimize service interruptions for any period that such
interruption continues beyond USBFS's control. USBFS agrees that it shall,
at all times, have reasonable contingency plans with appropriate parties,
making reasonable provision for emergency use of electrical data processing
equipment to the extent appropriate equipment is available. Representatives
of the Trust shall be entitled to inspect USBFS's premises and operating
capabilities at any time during regular business hours of USBFS, upon
reasonable notice to USBFS.
The Trust understands that certain services made available through USBFS's
Systems are provided through the use of the equipment, software, and other
related services pursuant to certain contracts among various vendors and
USBFS. The Trust agrees to release and hold harmless USBFS against all
loss, liability, claims, actions, or damages which may arise from or by
reason of the Trust's use of such software or services provided by these
various vendors to USBFS, except as provided below. The Trust further
agrees to indemnify USBFS from any and all liability in connection with the
performance of its duties under this Agreement unless caused by USBFS's
intentional disregard or willful misconduct.
In no event and under no circumstances shall either party under this
Agreement be liable to the other party for consequential or indirect loss
of profits, reputation or business or any other special damages under any
provision of this Agreement or for any act or failure to act hereunder.
USBFS agrees to indemnify and hold harmless the Trust and its affiliates
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, attorneys' fees and disbursements) arising
directly or indirectly from any claim by a third party against the Trust
with respect to infringement of any patent or copyright of any goods,
services or programs supplied or used by USBFS (the "USBFS Materials") in
connection with the provision of services to the Trust hereunder. The
foregoing indemnification obligation shall not apply to any claim based on
or arising from (i) goods, services or programs not owned, developed or
provided by USBFS, (ii) the combination by the Trust of the USBFS Materials
with any other goods, services or programs not owned or developed by or on
behalf of USBFS, or (iii) the failure of the Trust to use the USBFS
Materials as authorized or for their intended purpose.
USBFS agrees to indemnify and hold harmless the Trust and its affiliates
and to defend them and hold them harmless, of and from all and all manner
of Losses and threatened Losses arising from, in connection with, or based
on allegations of: (i) failure of USBFS to observe or perform any duty or
obligation under any third party software license agreement or third party
service contract; (ii) any claim(s) of infringement of any patent,
copyright, trade secret, or other proprietary right of any third party
alleged to have occurred because of systems, software or other resources
provided by USBFS to the Trust; (iii) any claim by a third party of
violation of a duty of confidentiality or other similar duty in respect of
information in the possession of USBFS which information was provided to
the Trust; (iv) any claims arising out of or related to occurrences which
USBFS is to insure against pursuant to this Agreement or applicable law;
(v) any claim of unlawful harassment or discrimination resulting from an
action of USBFS or its employees, agents or representatives; or (vi) any
claim or action arising out of or relating to any illness, other injury or
death of a person, or damage to property, attributable to the negligence or
misconduct of USBFS or its employees, agents or representatives. Losses
shall mean all losses, liabilities, damages, claims and all costs and
expenses relating to the same (including specifically and without
limitation reasonable attorney's fees, disbursements, and costs of
investigation, litigation, settlement, judgment, interest and penalties, if
any).
7. Warranties
The Trust acknowledges that it is responsible for determining the
suitability and accuracy of the information provided through its access to
the Systems. USBFS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE SYSTEMS' SUITABILITY AND ACCURACY. However,
USBFS will assist the Trust in verifying the accuracy of any of the
information available to the Trust through any of the Systems accessed and
covered by this Agreement.
USBFS warrants that it has full legal right and authority, under, among
others, U.S. copyright and patent laws to use and to give to the Trust to
use all codes, system access mechanisms, programs, manuals and other
written information pertaining to the Systems.
8. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of three years. Subsequent to the
initial three-year term, this Agreement may be terminated, without the
payment of any penalty, by either party upon giving ninety (90) days prior
written notice to the other party or such shorter period as is mutually
agreed upon by the parties. In the event of such termination, the Trust
shall immediately end its access to the Systems and return allcodes, system
access mechanisms, programs, manuals and other written documentation
provided to the Trust by USBFS to USBFS, and shall destroy or erase all
such information on any diskettes or other storage medium.
Notwithstanding the above, this Agreement may be amended by mutual written
consent of the parties.
9. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but all of which counterparts
shall together constitute but one and the same instrument.
10. Governing law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order thereunder.
11. Assignment
This Agreement, and any right or obligation thereunder, may not be assigned
by either party without the prior written consent of the other party.
12. Notices
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
Fort Pitt Capital Funds
Xxxxxx Plaza Eleven
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxx Xxxxx, LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer on one or more counterparts as of the date first
above written.
U.S. BANCORP FUND SERVICES, LLC FORT PITT CAPITAL FUNDS
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxx Xxxxxxx Xxxxxx X. Xxxxxx
Title: Senior Vice President Title: President
