DATA ACCESS SERVICES AGREEMENT
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AGREEMENT between Xxx Xxx Funds (the "Customer") and State Street Bank and
Trust Company ("State Street").
PREAMBLE
WHEREAS, State Street has been appointed as custodian of certain assets of
the Customer pursuant to a certain Custodian Agreement (the "Custodian
Agreement") dated as of June __, 1999;
WHEREAS, State Street has developed and utilizes proprietary accounting
and other systems, including State Street's proprietary Multicurrency HORIZONSM
Accounting System, in its role as custodian of the Customer, and maintains
certain Customer-related data ("Customer Data") in databases under the control
and ownership of State Street (the "Data Access Services"); and
WHEREAS, State Street makes available to the Customer certain Data Access
Services solely for the benefit of the Customer, and intends to provide
additional services, consistent with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the parties
agree as follows:
1. SYSTEM AND DATA ACCESS SERVICES
a. SYSTEM. Subject to the terms and conditions of this Agreement, State
Street hereby agrees to provide the Customer with access to State Street's
Multicurrency HORIZON(SM) Accounting System and the other information
systems (collectively, the "System") as described in Attachment A, on a
remote basis for the purpose of obtaining reports and information, solely
on computer hardware, system software and telecommunication links as
listed in Attachment B (the "Designated Configuration") of the Customer,
or certain third parties approved by State Street that serve as investment
advisors or investment managers of the Customer or other third parties,
such as the Customer's independent auditors, which serve as service
providers to the Customer (each, an "Investment Advisor"), solely with
respect to the Customer or on any designated substitute or back-up
equipment configuration with State Street's written consent, such consent
not to be unreasonably withheld.
b. DATA ACCESS SERVICES. State Street agrees to make available to the
Customer the Data Access Services subject to the terms and conditions of
this Agreement and data access operating standards and procedures as may
be issued by State Street from time to time. The ability of the Customer
to originate electronic instructions to State Street on behalf of the
Customer in order to (i) effect the transfer or movement of cash or
securities held under custody by State Street or (ii) transmit accounting
or other information (such transactions are referred to herein as "Client
Originated Electronic Financial Instructions"), and (iii) access data for
the purpose of reporting and analysis, shall be deemed to be Data Access
Services for purposes of this Agreement.
c. ADDITIONAL SERVICES. State Street may from time to time agree to make
available to the Customer additional Systems that are not described in the
attachments to this Agreement. In the absence of any other written
agreement concerning such additional systems, the term "System" shall
include, and this Agreement shall govern, the Customer's access to and use
of any additional System made available by State Street and/or accessed by
the Customer.
2. NO USE OF THIRD PARTY SYSTEMS-LEVEL SOFTWARE
State Street and the Customer acknowledge that in connection with the Data
Access Services provided under this Agreement, the Customer will have access,
through the Data Access Services, to Customer Data and to functions of State
Street's proprietary systems; provided, however that in no event will the
Customer have direct access to any third party systems-level software that
retrieves data for, stores data from, or otherwise supports the System.
3. LIMITATION ON SCOPE OF USE
a. DESIGNATED EQUIPMENT; DESIGNATED LOCATION. The System and the Data Access
Services shall be used and accessed solely on and through the Designated
Configuration at the offices of the Customer or the Investment Advisor
located in *[city, state] ("Designated Location").
b. DESIGNATED CONFIGURATION; TRAINED PERSONNEL. State Street shall be
responsible for supplying, installing and maintaining the Designated
Configuration at the Designated Location. State Street and the Customer
agree that each will engage or retain the services of trained personnel to
enable both parties to perform their respective obligations under this
Agreement. State Street agrees to use commercially reasonable efforts to
maintain the System so that it remains serviceable, provided, however,
that State Street does not guarantee or assure uninterrupted remote access
use of the System.
c. SCOPE OF USE. The Customer will use the System and the Data Access
Services only for the processing of securities transactions, the keeping
of books of account for the Customer and accessing data for purposes of
reporting and analysis. The Customer shall not, and shall cause its
employees and agents not to (i) permit any third party to use the System
or the Data Access Services, (ii) sell, rent, license or otherwise use the
System or the Data Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Agreement,
(iii) use the System or the Data Access Services for any fund, trust or
other investment vehicle without the prior written consent of State
Street, (iv) allow access to the System or the Data Access Services
through terminals or any other computer or telecommunications facilities
located outside the Designated Locations, (v) allow or cause any
information (other than portfolio holdings, valuations of portfolio
holdings, and other information reasonably necessary for the management or
distribution of the assets of the Customer) transmitted from State
Street's databases, including data from third party sources, available
through use of the System or the Data Access Services to be redistributed
or retransmitted to another computer, terminal or other device for other
than use for or on behalf of the Customer or (vi) modify the System in any
way, including without limitation, developing any software for or
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attaching any devices or computer programs to any equipment, system,
software or database which forms a part of or is resident on the
Designated Configuration.
d. OTHER LOCATIONS. Except in the event of an emergency or of a planned
System shutdown, the Customer's access to services performed by the System
or to Data Access Services at the Designated Location may be transferred
to a different location only upon the prior written consent of State
Street. In the event of an emergency or System shutdown, the Customer may
use any back-up site included in the Designated Configuration or any other
back-up site agreed to by State Street, which agreement will not be
unreasonably withheld. The Customer may secure from State Street the right
to access the System or the Data Access Services through computer and
telecommunications facilities or devices complying with the Designated
Configuration at additional locations only upon the prior written consent
of State Street and on terms to be mutually agreed upon by the parties.
e. TITLE. Title and all ownership and proprietary rights to the System,
including any enhancements or modifications thereto, whether or not made
by State Street, are and shall remain with State Street.
f. NO MODIFICATION. Without the prior written consent of State Street, the
Customer shall not modify, enhance or otherwise create derivative works
based upon the System, nor shall the Customer reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
System.
g. SECURITY PROCEDURES. The Customer shall comply with data access operating
standards and procedures and with user identification or other password
control requirements and other security procedures as may be issued from
time to time by State Street for use of the System on a remote basis and
to access the Data Access Services. The Customer shall have access only to
the Customer Data and authorized transactions agreed upon from time to
time by State Street and, upon notice from State Street, the Customer
shall discontinue remote use of the System and access to Data Access
Services for any security reasons cited by State Street; provided, that,
in such event, State Street shall, for a period not less than 180 days (or
such other shorter period specified by the Customer) after such
discontinuance, assume responsibility to provide accounting services under
the terms of the Custodian Agreement.
h. INSPECTIONS. State Street shall have the right to inspect the use of the
System and the Data Access Services by the Customer and the Investment
Advisor to ensure compliance with this Agreement. The on-site inspections
shall be upon prior written notice to the Customer and the Investment
Advisor and at reasonably convenient times and frequencies so as not to
result in an unreasonable disruption of the Customer's or the Investment
Advisor's business.
4. PROPRIETARY INFORMATION
a. PROPRIETARY INFORMATION. The Customer acknowledges and State Street
represents that the System and the databases, computer programs, screen
formats, report formats, interactive design techniques, documentation and
other information made available to the Customer by State Street as part
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of the Data Access Services and through the use of the System constitute
copyrighted, trade secret, or other proprietary information of substantial
value to State Street. Any and all such information provided by State
Street to the Customer shall be deemed proprietary and confidential
information of State Street (hereinafter "Proprietary Information"). The
Customer agrees that it will hold such Proprietary Information in the
strictest confidence and secure and protect it in a manner consistent with
its own procedures for the protection of its own confidential information
and to take appropriate action by instruction or agreement with its
employees who are permitted access to the Proprietary Information to
satisfy its obligations hereunder. The Customer further acknowledges that
State Street shall not be required to provide the Investment Advisor with
access to the System unless it has first received from the Investment
Advisor an undertaking with respect to State Street's Proprietary
Information in the form of Attachment C to this Agreement. The Customer
shall use all commercially reasonable efforts to assist State Street in
identifying and preventing any unauthorized use, copying or disclosure of
the Proprietary Information or any portions thereof or any of the logic,
formats or designs contained therein.
b. COOPERATION. Without limitation of the foregoing, the Customer shall
advise State Street immediately in the event the Customer learns or has
reason to believe that any person to whom the Customer has given access to
the Proprietary Information, or any portion thereof, has violated or
intends to violate the terms of this Agreement, and the Customer will, at
its expense, co-operate with State Street in seeking injunctive or other
equitable relief in the name of the Customer or State Street against any
such person.
c. INJUNCTIVE RELIEF. The Customer acknowledges that the disclosure of any
Proprietary Information, or of any information which at law or equity
ought to remain confidential, will immediately give rise to continuing
irreparable injury to State Street inadequately compensable in damages at
law. In addition, State Street shall be entitled to obtain immediate
injunctive relief against the breach or threatened breach of any of the
foregoing undertakings, in addition to any other legal remedies which may
be available.
d. SURVIVAL. The provisions of this Section 4 shall survive the termination
of this Agreement.
5. LIMITATION ON LIABILITY
a. LIMITATION ON AMOUNT AND TIME FOR BRINGING ACTION. The Customer agrees
that any liability of State Street to the Customer or any third party
arising out of State Street's provision of Data Access Services or the
System under this Agreement shall be limited to the amount paid by the
Customer for the preceding 24 months for such services. In no event shall
State Street be liable to the Customer or any other party for any special,
indirect, punitive or consequential damages even if advised of the
possibility of such damages. No action, regardless of form, arising out of
this Agreement may be brought by the Customer more than two years after
the Customer has knowledge that the cause of action has arisen.
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b. LIMITED WARRANTIES. NO OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY STATE STREET.
c. THIRD-PARTY DATA. Organizations from which State Street may obtain certain
data included in the System or the Data Access Services are solely
responsible for the contents of such data, and State Street shall have no
liability for claims arising out of the contents of such third-party data,
including, but not limited to, the accuracy thereof.
d. REGULATORY REQUIREMENTS. As between State Street and the Customer, the
Customer shall be solely responsible for the accuracy of any accounting
statements or reports produced using the Data Access Services and the
System and the conformity thereof with any requirements of law.
e. FORCE MAJEURE. Neither party shall be liable for any costs or damages due
to delay or nonperformance under this Agreement arising out of any cause
or event beyond such party's control, including without limitation,
cessation of services hereunder or any damages resulting therefrom to the
other party, or the Customer as a result of work stoppage, power or other
mechanical failure, computer virus, natural disaster, governmental action,
or communication disruption.
6. INDEMNIFICATION
The Customer agrees to indemnify and hold State Street harmless from any loss,
damage or expense including reasonable attorney's fees, (a "loss") suffered by
State Street arising from (i) the negligence or willful misconduct in the use by
the Customer of the Data Access Services or the System, including any loss
incurred by State Street resulting from a security breach at the Designated
Location or committed by the Customer's employees or agents or the Investment
Advisor and (ii) any loss resulting from incorrect Client Originated Electronic
Financial Instructions. State Street shall be entitled to rely on the validity
and authenticity of Client Originated Electronic Financial Instructions without
undertaking any further inquiry as long as such instruction is undertaken in
conformity with security procedures established by State Street from time to
time.
7. FEES
Fees and charges for the use of the System and the Data Access Services and
related payment terms shall be as set forth in the Custody Fee Schedule in
effect from time to time between the parties (the "Fee Schedule"). Any tariffs,
duties or taxes imposed or levied by any government or governmental agency by
reason of the transactions contemplated by this Agreement, including, without
limitation, federal, state and local taxes, use, value added and personal
property taxes (other than income, franchise or similar taxes which may be
imposed or assessed against State Street) shall be borne by the Customer. Any
claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
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8. TRAINING, IMPLEMENTATION AND CONVERSION
a. TRAINING. State Street agrees to provide training, at a designated State
Street training facility or at the Designated Location, to the Customer's
personnel in connection with the use of the System on the Designated
Configuration. The Customer agrees that it will set aside, during regular
business hours or at other times agreed upon by both parties, sufficient
time to enable all operators of the System and the Data Access Services,
designated by the Customer, to receive the training offered by State
Street pursuant to this Agreement.
b. INSTALLATION AND CONVERSION. State Street shall be responsible for the
technical installation and conversion ("Installation and Conversion") of
the Designated Configuration. The Customer shall have the following
responsibilities in connection with Installation and Conversion of the
System:
(i) The Customer shall be solely responsible for the timely acquisition
and maintenance of the hardware and software that attach to the
Designated Configuration in order to use the Data Access Services at
the Designated Location.
(ii) State Street and the Customer each agree that they will assign
qualified personnel to actively participate during the Installation
and Conversion phase of the System implementation to enable both
parties to perform their respective obligations under this
Agreement.
9. SUPPORT
During the term of this Agreement, State Street agrees to provide the support
services set out in Attachment D to this Agreement.
10. TERM OF AGREEMENT
a. TERM OF AGREEMENT. This Agreement shall become effective on the date of
its execution by State Street and shall remain in full force and effect
until terminated as herein provided.
b. TERMINATION OF AGREEMENT. Either party may terminate this Agreement (i)
for any reason by giving the other party at least one-hundred and eighty
days' prior written notice in the case of notice of termination by State
Street to the Customer or thirty days' notice in the case of notice from
the Customer to State Street of termination; or (ii) immediately for
failure of the other party to comply with any material term and condition
of the Agreement by giving the other party written notice of termination.
In the event the Customer shall cease doing business, shall become subject
to proceedings under the bankruptcy laws (other than a petition for
reorganization or similar proceeding) or shall be adjudicated bankrupt,
this Agreement and the rights granted hereunder shall, at the option of
State Street, immediately terminate with notice to the Customer. This
Agreement shall in any event terminate as to any Customer within 90 days
after the termination of the Custodian Agreement applicable to such
Customer.
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c. TERMINATION OF THE RIGHT TO USE. Upon termination of this Agreement for
any reason, any right to use the System and access to the Data Access
Services shall terminate and the Customer shall immediately cease use of
the System and the Data Access Services. Immediately upon termination of
this Agreement for any reason, the Customer shall return to State Street
all copies of documentation and other Proprietary Information in its
possession; provided, however, that in the event that either party
terminates this Agreement or the Custodian Agreement for any reason other
than the Customer's breach, State Street shall provide the Data Access
Services for a period of time and at a price to be agreed upon by the
parties.
11. MISCELLANEOUS
a. ASSIGNMENT; SUCCESSORS. This Agreement and the rights and obligations of
the Customer and State Street hereunder shall not be assigned by either
party without the prior written consent of the other party, except that
State Street may assign this Agreement to a successor of all or a
substantial portion of its business, or to a party controlling, controlled
by, or under common control with State Street.
b. SURVIVAL. All provisions regarding indemnification, warranty, liability
and limits thereon, and confidentiality and/or protection of proprietary
rights and trade secrets shall survive the termination of this Agreement.
c. ENTIRE AGREEMENT. This Agreement and the attachments hereto constitute the
entire understanding of the parties hereto with respect to the Data Access
Services and the use of the System and supersedes any and all prior or
contemporaneous representations or agreements, whether oral or written,
between the parties as such may relate to the Data Access Services or the
System, and cannot be modified or altered except in a writing duly
executed by the parties. This Agreement is not intended to supersede or
modify the duties and liabilities of the parties hereto under the
Custodian Agreement or any other agreement between the parties hereto
except to the extent that any such agreement specifically refers to the
Data Access Services or the System. No single waiver of any right
hereunder shall be deemed to be a continuing waiver.
d. SEVERABILITY. If any provision or provisions of this Agreement shall be
held to be invalid, unlawful, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be
affected or impaired.
e. GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the internal laws of The Commonwealth of Massachusetts
without regard to the conflict of laws provisions thereof.
f. YEAR 0000. Xxxxx Xxxxxx will take reasonable steps to ensure that its
products (and those of its third-party suppliers) reflect the available
state of the art technology to offer products that are Year 2000
compliant, including, but not limited to, century recognition of dates,
calculations that correctly compute same century and multi century
formulas and date values, and interface values that reflect the date
issues arising between now and the next one-hundred years, and if any
changes are required, State Street will make the changes to its products
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at no cost to the Customer and in a commercially reasonable time frame and
will require third-party suppliers to do likewise.
Similarly, Customer will take reasonable steps to ensure that its
electronic systems reflect the available state of the art technology and
are Year 2000 compliant, including, but not limited to, century
recognition of dates, calculations that correctly compute same century and
multi century formulas and date values, and interface values that reflect
the date issues arising between now and the next one-hundred years, and if
any changes are required, Customer will make the changes to its systems at
no cost to State Street and in a commercially reasonable time frame.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of June ___, 1999.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Novellaw
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Title: Vice President
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Date:
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XXX XXX FUNDS
By: /s/ Xxxxxx Xxxxxx
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Title: Secretary
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Date: June 16, 1999
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