TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of December ____, 2001 by and between PFPC INC.,
a Massachusetts corporation ("PFPC"), and AXA PREMIER FUNDS TRUST, a Delaware
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 with
respect to its portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time by written agreement
among the parties (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 Trustees to give Oral
Instructions and Written Instructions on behalf of the Fund and listed
on the Authorized Persons Appendix attached hereto and made a part
hereof or any amendment thereto delivered by the
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Fund to PFPC. 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.
(e) "Custodian" shall mean [Chase], as custodian under the terms and
conditions of the [Custody Agreement] between [Chase] and the Fund, or
it successor, or any other custodian appointed by the Fund.
(f) "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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "Shares" mean the shares of beneficial interest of any series or class
of the Fund.
(j) "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.
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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 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 management agreement with respect to each Portfolio of
the Fund;
(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 represents and warrants that it
is in compliance with, and will continue to be in compliance 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 ("Applicable Law"). Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
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(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 of the Fund or of any vote,
resolution or proceeding of the Fund's Board of Trustees or of the
Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary. 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 and
Applicable Law. PFPC shall have no obligation to authenticate or
otherwise confirm that the signature of an individual on any Written
Instruction received by it from the Fund conforms to the signature of
such individual as set forth in the Authorized Persons Appendix.
(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 shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions.
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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 in writing from counsel, PFPC may
rely upon and follow the advice of counsel, provided that PFPC
believes, in good faith, that its acts or omissions to act are
consistent with such written advice from counsel. In the event that
PFPC so relies on the advice of counsel, PFPC shall remain liable for
any action or omission on the part of PFPC which constitutes (i)
willful misfeasance, bad faith, negligence or reckless disregard by
PFPC of its duties, obligations and responsibilities under this
Agreement or Applicable Law or (ii) a breach of this Agreement by
PFPC.
(d) Protection of PFPC. PFPC shall not be liable to the Fund for any
action it takes or does not take in reliance in good faith 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
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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. Nothing in this subsection
shall excuse PFPC when an action or omission on the part of PFPC
otherwise constitutes (A) willful misfeasance, bad faith, negligence
or reckless disregard by PFPC of its duties, obligations and
responsibilities under this Agreement or Applicable Law or (B) a
breach of this Agreement.
7. RECORDS; VISITS. PFPC shall keep such records as are specified in, and in
the form and manner, and for such period, as are required by, the rules and
regulations of appropriate government authorities, in particular Rules
31a-2 and 31a-3 under the 1940 Act. Such records shall be deemed to be
"Confidential Information" for the purposes of this Agreement. The records
maintained by PFPC pursuant to this Section 7 shall be considered to be the
property of the Fund and PFPC shall make such records available promptly
upon request for inspection by representatives of the Fund's internal and
external auditors and legal counsel, employees of the Fund, officers of the
Fund and employees of the investment advisors or sponsor of the Fund or any
of their affiliates designated by the Fund, as well as all federal, state
and other regulatory agencies having jurisdiction over the Fund's
activities, and such records shall promptly be delivered to the Fund upon
request and in any event upon the date of termination of this Agreement, in
all forms and manner kept by PFPC on such date of termination or such
earlier date as may be requested by the Fund. Any actual documented
out-of-pocket expenses that PFPC
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incurs in connection with its compliance with the provisions of the
foregoing sentence of this Section 7 shall be reimbursed to it by the Fund.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business and the business of its affiliates
("Confidential Information"). Confidential Information shall include (a)
any data or information that is competitively sensitive material, or not
generally known to the public, including, but not limited to, information
about shareholders of the Fund, product plans, marketing strategies,
finances, operations, customer relationships, customer profiles, customer
lists, sales estimates, business plans, business practices, business
records 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 past, present or prospective
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, improvements, know-how, and trade
secrets, whether or not patentable or copyrightable; and (d) anything
designated as confidential. Each party hereby agrees not to disclose the
Confidential Information of the other to any third party except to its
employees or agents who (A) have a need to know such Confidential
Information for the purpose of the performance of this Agreement and (B)
agree not to use such Confidential Information other than for such
purposes. Each party shall make its employees and agents aware of the
restrictions and obligations of this paragraph.
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Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations to the extent that it: (a) is or becomes
publicly known or available through no wrongful act of the receiving party;
(b) is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality; (c) is
released by the protected party to a third party without restriction; or
(d) has been or is independently developed or obtained by the receiving
party. The recipient of Confidential Information may, if ordered to do so
by a regulatory authority with jurisdiction over it or if it is required to
be disclosed by such recipient under operation of law, court order or other
valid legal process, disclose Confidential Information to such regulatory
authority or in accordance with such law, court order or legal process,
provided sufficient written notice is given to the other party to this
Agreement prior to such disclosure to enable such other party to seek an
order limiting or precluding such disclosure.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions, at no
additional cost to the Fund, in the performance of its 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 of its
proprietary data bases, computer programs, screen formats, report formats,
interactive design techniques, changes, modifications, enhancements,
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
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services provided by PFPC to the Fund and in no event shall the Fund obtain
any ownership rights therein. All aspects of PFPC's IMPRESSNet(R)Service
will be owned by PFPC, except for trademarks of the Fund and its
affiliates, which shall be the exclusive property of the Fund and its
affiliates.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements for back-up facilities,
equipment and software for use in case of loss of use of the primary
facilities, equipment and software or part thereof used to provide services
hereunder. In the event of such loss of use, PFPC shall, at no additional
expense to the Fund, promptly exercise its rights under such agreements to
minimize service interruptions. PFPC shall test such back-up arrangements
at least annually during the term of this Agreement and, promptly after
each such test, shall prepare a written report on the adequacy of such
back-up arrangements and deliver a copy of such report to the Fund. [PFPC
shall give the Fund at least ten (10) days' prior written notice of each
such annual test and shall permit a representative of the Fund or its
affiliates to observe the performance of the testing procedures.][OPEN
ITEM] PFPC's obligations hereunder shall not be suspended during the period
that such back-up facilities, equipment or software are in use. 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 or its failure to provide adequate back-up facilities,
equipment and software.
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 set forth in
that certain letter agreement, of even date herewith, executed by the
parties (the "Fee Letter"). The Fund
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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 BY THE FUND.
(a) The Fund agrees to indemnify, defend and hold harmless PFPC and its
affiliates from all taxes, charges, expenses (including, without
limitation, reasonable attorneys' fees and disbursements),
assessments, claims and liabilities, including liabilities arising
under the Securities Laws and any state and foreign securities and
blue sky laws, arising from (i) any action or omission to act which
PFPC takes (a) in connection with the performance of its duties and
obligations under this Agreement or (b) upon Oral Instructions or
Written Instructions or (ii) the acceptance, processing and/or
negotiation of checks or other methods utilized for the purchase of
Shares. Notwithstanding the foregoing, neither PFPC, nor any of its
affiliates, shall be indemnified against, nor shall the Fund have any
liability to PFPC for, any liability (or any expenses incident to such
liability) (A) caused by PFPC's or its affiliates' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties
and obligations under this Agreement or Applicable Law, 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, negligence or reckless
disregard of such duties and obligations, or (B) which arises out of
any act or omission to act by PFPC in breach of this Agreement.
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(b) Upon the assertion of a claim for which the Fund may be required to
indemnify PFPC, PFPC shall promptly notify the Fund of such assertion,
and shall keep the Fund advised with respect to all developments
concerning such claim. The Fund shall have the option to participate
with PFPC in the defense of such claim. PFPC shall in no case confess
any claim or make any compromise in any case in which the Fund may be
required to indemnify it except with the Fund's prior written consent.
14. INDEMNIFICATION BY PFPC.
(a) PFPC agrees to indemnify, defend and hold harmless the Fund and its
affiliates from all taxes, charges, expenses, (including, without
limitation, reasonable attorneys' fees and disbursements),
assessments, claims and liabilities, including liabilities arising
under the Securities Laws and any state and foreign securities and
blue sky laws, arising from (i) PFPC's willful misfeasance, bad faith,
negligence or reckless disregard of its duties under this Agreement or
Applicable Law or (ii) any breach of this Agreement by PFPC.
Notwithstanding the foregoing, neither the Fund, nor any of its
affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) (A) caused by the Fund's or its
affiliates' own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement or (B)
arising out of a breach of this Agreement by the Fund.
(b) Upon the assertion of a claim for which PFPC may be required to
indemnify the Fund, the Fund shall promptly notify PFPC of such
assertion, and shall keep PFPC advised with respect to all
developments concerning such claim. PFPC
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shall have the option to participate with the Fund in the defense of
such claim. The Fund shall in no case confess any claim or make any
compromise in any case in which PFPC may be required to indemnify it
except with PFPC's prior written consent.
15. RESPONSIBILITY OF PFPC; LIMITATION ON DAMAGES.
(a) Responsibility of PFPC - General. PFPC shall be under no duty to take
any action hereunder on behalf of the Fund except as specifically set
forth herein (including upon the receipt of Oral Instructions or
Written Instructions) or as may be specifically agreed to by PFPC and
the Fund in a written amendment hereto. Without limiting the
provisions of Section 2 and Sections 16(n) and (o) of this Agreement,
PFPC agrees that its shall exercise care and diligence in the
performance of its duties hereunder and shall act in good faith in
performing services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of (i) PFPC's failure to
perform its duties under this Agreement or Applicable Law to the
extent such damages arise out of PFPC's willful misfeasance, bad
faith, negligence or reckless disregard of such duties or (ii) a
breach of this Agreement by PFPC.
(b) Limitations on Responsibility of PFPC. Without limiting the generality
of the foregoing or of any other provision of this Agreement, 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
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requirements of this Agreement, and which PFPC reasonably believes to
be genuine.
(c) Limitations on Damages Payable by Either Party. Notwithstanding
anything in this Agreement to the contrary and subject to the
provisions of Section 15(d) below, except for fees payable in
accordance with the provisions of this Agreement and the Fee Letter
and except for a liability arising out of breach of the provisions of
this Agreement relating to Confidential Information, neither party
shall be liable to the other under this Agreement, whether for breach
of this Agreement, for the payment of indemnity obligations hereunder
or otherwise, in an amount in excess of the greater of (i) one (1)
year's fees payable in accordance with the provisions of this
Agreement and the Fee Letter or (ii) $2,000,000 (Two Million Dollars)
in the aggregate. In the event that the fees payable in accordance
with the provisions of this Agreement and the Fee Letter vary during
the one-year periods commencing on the date of this Agreement, then
the amount in clause (i) of the previous sentence shall be equal to
the greatest amount of fees payable in accordance with the provisions
of this Agreement and the Fee Letter in respect of any such one-year
period.
(d) Limitations on Consequential Damages. Notwithstanding anything in this
Agreement to the contrary, neither party nor its affiliates shall be
liable for any consequential, special, incidental, punitive or
indirect losses or damages which the other party, or its' affiliates
may incur or suffer by or as a consequence of a party's or its'
affiliates performance of it obligations hereunder, whether or not the
likelihood of such losses or damages was known by the party or its
affiliates.
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(e) Time Limitations on Actions. No party may assert a cause of action
against either the Fund or PFPC or any of their respective affiliates
that allegedly occurred more than 36 months immediately prior to the
filing of the suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action.
(f) Duty to Mitigate Damages. Each party shall have a duty to mitigate
damages for which the other party may become responsible.
(g) Limitation on Recovery. Notwithstanding anything else herein
contained, as provided in the Fund's governing instrument, the debts,
liabilities and obligations and expenses incurred in connection with
PFPC's services with respect to a particular Portfolio shall be
enforceable against the assets of such Portfolio only, and not against
the assets of the Fund generally, any other Portfolio or any Trustee
or shareholder of the Fund.
16. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
PFPC's duties hereunder shall include the furnishing of the following
services to the Fund and its shareholders:
(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;
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(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).
(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.
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(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 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. 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.
(e) Dividends and Distributions. Upon receipt of a resolution of the
Fund's Board of 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
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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 Internal Revenue Service 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) Upon the receipt of Written Instructions, PFPC shall 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) Upon the receipt of Written Instructions, PFPC shall 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.
(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
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(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 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
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(ii) Completion of a release and indemnification agreement signed by
the shareholder to protect PFPC and its affiliates and the Fund
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 by the Fund 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;
(iii) tracking results and maintaining data sufficient to comply wit
the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
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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 print/mail service provider with respect to
those items identified in the Fee Letter.
(n) Reports. PFPC will provide the applicable periodic reports described
in its Standard Product Reports Guide.
(o) Service Level Agreement. The services described in this Section 16
shall be provided in accordance with the Service Level Agreement
attached hereto as Exhibit B and made a part hereof.
17. INSURANCE. PFPC will at all times during the term of this Agreement
maintain the following insurance policies issued by a qualified
insurance carrier with a Best's rating of `A' or better, in at least
the following minimum amounts: (i) a fidelity bond providing coverage
for, among other things, employee dishonesty, loss of money/securities,
and forgery, in the amount of at least $100 million, and (ii) a
professional liability policy providing errors and omissions coverage
in the amount of at least $10 million.
18. DURATION AND TERMINATION.
(a) This Agreement shall terminate on the third (3rd) anniversary
of the date hereof, provided that it shall be automatically
extended for successive one-year terms unless at least sixty
(60) days' prior to the third (3rd) anniversary of the date
hereof or any successive anniversary date the Fund or PFPC has
given written notice of its intent to terminate this
Agreement, in which event this Agreement shall terminate on
such anniversary date.
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(b) Notwithstanding the foregoing Section 18(a), either party may
terminate this Agreement at any time if the other party shall
breach a material provision of this Agreement and fails to
cure such breach within thirty (30) days of receipt of notice
from the other party providing details concerning such alleged
breach.
(c) Notwithstanding the foregoing Section 18(a), either party may
terminate this Agreement if (i) the other party shall commence
a voluntary case or proceeding under any bankruptcy law,
consent to the entry of an order for relief against it in any
involuntary case under any bankruptcy law, or consent to the
appointment of a trustee, receiver or similar official under
any bankruptcy law, or (ii) a court of competent jurisdiction
shall enter an order or decree under any bankruptcy law (which
order or decree is not dismissed within 120 days after the
entry thereof) that grants creditors of the other party relief
in an involuntary case, appoints a trustee, receiver or
similar official for the other party, or orders the
liquidation of the other party.
(d) In the event of a termination of this Agreement, all expenses
associated with movement (or duplication) of records and
materials and conversion thereof to a successor transfer agent
or other service provider, and all trailing expenses incurred
by PFPC or the Fund, will be borne by the party giving the
notice of termination, except to the extent that a party's
termination of this Agreement is due to the breach of this
Agreement by the other party, in which case the breaching
party shall bear such costs.
21
19. NOTICES. All written notices or other communications hereunder
(including Written Instructions) shall be in writing or by confirming
telegram, cable, telex or facsimile sending device and shall be
addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: President; or (b) if to the Fund, at 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ___________________,
or to such address as either such party shall notify the other party of
in a like manner. 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.
20. 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.
21. USE OF FUND'S NAME. PFPC shall not use the names of the Fund, its
sponsor or any of their affiliates or the Portfolios in a manner not
approved prior thereto, provided, however, PFPC may use without such
approval its name in representative client lists which merely refer in
accurate terms to the appointment of PFPC hereunder or which are
required by the SEC or a state securities commission. PFPC shall not,
without the prior written consent of the Fund's sponsor, use the
trademarks, trade names or logos of the Fund's sponsor or any of its
affiliates.
22. SECURITY. PFPC represents and warrants that, to the best of its
knowledge, the various procedures and systems which PFPC has
implemented with regard to safeguarding from
22
loss or damage the Fund's blank check, records and other data and
PFPC's records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are commercially
reasonable.
23. REGISTRATION AS A TRANSFER AGENT. PFPC represents that it is currently
registered with the appropriate Federal agency for the registration of
transfer agents, and covenants that it will remain so registered for
the duration of this Agreement. PFPC agrees that it will promptly
notify the Fund in the event of any material changes in its status as a
registered transfer agent.
24. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or The PNC Financial Services Group, Inc., provided that (i) PFPC
gives the Fund thirty (30) days prior written notice of such assignment
or delegation, (ii) the delegate or assignee is registered and
qualified under the 1934 Act to act as a transfer agent, (iii) the
assignee or delegate agrees to comply with the terms of this Agreement
and the relevant provisions of the Securities Laws, and (iv) PFPC and
such assignee or delegate promptly provide such information as the Fund
may reasonably request, and respond, to the reasonable satisfaction of
the Fund, to such questions as the Fund may reasonably ask, relative to
the assignment or delegation (including, without limitation, the
capabilities of the assignee or delegate).
25. 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.
23
26. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are reasonably necessary to
effectuate the purposes hereof.
27. XXXXXXXXXX.XXX SERVICES. PFPC shall provide to the Fund the internet
access services as set forth on Exhibit C attached hereto and made a
part hereof, as such Exhibit C may be amended from time to time.
28. AUDIT.
(a) The Fund, representatives of the Fund's auditors and legal
counsel, and employees, and officers of the Fund or other
persons designated by the Fund shall have the right from time
to time to perform on-site audits at the facility of PFPC
which do not result in an unreasonable disruption of the
business of PFPC, such audits to include, but not be limited
to, monitoring phone conversations (to the extent permitted by
law) and reviewing correspondence and operating procedures as
they relate to the provision of services under this Agreement.
On-site audits are intended to permit the Fund, among other
things, to assure itself that PFPC's system of internal
accounting controls is adequate and shall be conducted in
accordance with an audit program, the scope and frequency of
which shall be agreed upon from time to time in good faith by
the parties. Visits to PFPC's facility may take place only
during business hours and upon request given to PFPC not less
than two business days prior to the proposed date of audit,
unless such notice is inconsistent with the objectives of the
audit program. The Fund and such persons also may obtain a
reasonable number of copies of records and accounts directly
related to the services to be supplied hereunder by PFPC.
24
(b) [PFPC shall provide the Fund with a report, which includes
control objectives, in accordance with Statement on Auditing
Standards No. 44, Paragraphs Nos. 42 through 46, "Special
Purpose Reports on Internal Accounting Control at Service
Organizations," as amended or replaced from time to time,
issued by the American Institute of Certified Public
Accountants, on PFPC's system of internal controls with
respect to its shareowner accounting system. The report shall
be prepared by PFPC's auditing firm annually, within sixty
(60) days of the end of the annual period covered by the
report.]
29. FORCE MAJEURE. Notwithstanding anything in this Agreement to the
contrary, in no event shall either party be liable for any loss if and
to the extent such loss is caused, directly or indirectly, by (i) fire,
flood, elements of nature or other acts of God; (ii) any outbreak or
escalation of hostilities, war, riots or civil disorders in any
country, (iii) any act or omission of any governmental authority; (iv)
any labor disputes (whether or not the employees' demands are
reasonable or within the party's power to satisfy); or (v)
nonperformance by a third party or any similar cause beyond the
reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications, the internet or other
equipment operated or controlled by such party.
30. MISCELLANEOUS.
(a) Entire Agreement. This Agreement (including the Exhibits, the
Authorized Persons Appendix, the Fee Letter and the other
documents referenced herein) embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
25
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) Changes that Materially Affect PFPC's Obligations. Prior to
making any modifications to its registration statement or
adopting any policies which, in either case, would materially
and adversely affect PFPC's costs in performing its duties and
obligations hereunder, the Fund will (i) notify PFPC in
writing of such modifications or amendments, (ii) if requested
by PFPC within ten (10) business days after such notification
has been given, consult with PFPC regarding the increased
costs to PFPC of, and/or the feasibility of PFPC, performing
its duties and obligations hereunder in conformity with such
modifications or amendments, and (iii) negotiate in good faith
with PFPC adjustments to the fees payable to PFPC hereunder so
that such fees, as so adjusted, will cover PFPC's verified
cost increases as a result of performing its duties and
obligations hereunder in conformity with such modifications or
amendments.
(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 [Delaware or Massachusetts] and governed by [Delaware
or Massachusetts] law, without regard to principles of
conflicts of law.
(e) Dispute Resolution. Any dispute or controversy arising out of
or related to this Agreement or any breach thereof, or the
termination of this Agreement, shall be
26
settled in accordance with the procedures set forth in Exhibit
D attached hereto and made a part hereof.
(f) 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.
(g) 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.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:________________________________
Title:______________________________
AXA PREMIER FUNDS TRUST
By:________________________________
Title:______________________________
27
AUTHORIZED PERSONS APPENDIX
Name Signature
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
28
EXHIBIT A
THIS EXHIBIT A, dated as of ________________ , 2001, is Exhibit A to that
certain Transfer Agency Services Agreement dated as of ___________________,
2001, between PFPC Inc. and AXA Premier Funds Trust.
PORTFOLIOS
AXA Premier Large Cap Core Equity Fund
AXA Premier Large Cap Growth Fund
AXA Premier Large Cap Value Fund
AXA Premier Small/Mid Cap Growth Fund
AXA Premier Small/Mid Cap Value Fund
AXA Premier International Equity Fund
AXA Premier Technology Fund
AXA Premier Health Care Fund
AXA Premier Core Bond Fund
AXA Premier Money Market Fund
EXHIBIT B
SERVICE LEVEL AGREEMENT
Telephones
To be measured on a quarterly basis, minimum of 300 calls offered.
o The average speed of answering calls will be twenty (20) seconds or
less
o The abandonment rate for teleservicing calls will be five (5) percent
or less (Calculation: calls abandoned over 20 seconds/calls offered)
o The service level will be ninety percent (90%) or higher. The service
level will be calculated by the number of calls answered after
threshold plus the number of calls abandoned after the threshold
multiplied by 100 and divided by the number of calls answered plus the
number of calls abandoned. The threshold is defined as all calls
answered after twelve (12) seconds.
Processing
The following standards will be met 95% of the time measured on a quarterly
basis, minimum 50 items per standard measured.
o New accounts in good order will be established on the PFPC System on
the same day received
o Shareholder transactions in good order will be processed on the PFPC
System on the same say received
o Correspondence will be completed within five (5) business days of
receipt
o Maintenance items in good order will be completed within five (5)
business days of receipt
Print/Mail
The following standards will be met 95% of the time measured on a quarterly
basis.
o Daily confirmations will be mailed to Shareholders on Trade Date plus
two (2) business days
o Check requests will be mailed to Shareholders on Trade Date plus two
(2) business days
o Quarterly statements will be mailed to Shareholders within five (5)
business days from quarter end
EXHIBIT C
IMPRESSNET(R) 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 C:
(a) "End-User" means any Shareholder that accesses the PFPC System via
IMPRESSNet(R).
(b) "End-User Data" means data generated as a result of an End-User's
access of the hypertext link from the Fund Web Site to IMPRESSNet(R), and
includes personal and Fund account information.
(c) "Confidential Information" shall be as defined in Section 8 of the
Agreement.
(d) "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(R).
(f) "IMPRESSNet(R) 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(R) via hypertext link from the Fund Web Site.
(g) "Inquiry" means any access to the PFPC System via
IMPRESSNet(R)requested by an End-User which is not a Transaction.
(h) "Internet" means the communications network comprised of multiple
communications networks linking education, government, industrial and private
computer networks.
(i) "IMPRESSNet(R)" 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, whereby the Inquiry and Transaction data fields
and related screens provided by PFPC may be viewed.
(j) "Shareholder" means the record owner or authorized agent of the record
owner of shares of the Fund.
(k) "Transaction" shall mean purchase, redemption, exchange or any other
activity involving the movement of Shares initiated by an End-User, provided
that broker-dealer back office operations will not be permitted to initiate
Transactions.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit C 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) all computers, telecommunications equipment, encryption technology and
other materials and services reasonably necessary to develop and maintain
IMPRESSNet(R) to permit persons to be able to view information about the Fund
and to permit End-Users with appropriate identification and access codes to
request Inquiries and initiate Transactions;
(b) at least one consistent return hypertext link from IMPRESSNet(R) to a
page within the Fund Web Site designated by the Fund, which shall be displayed
subject to the mutual agreement of the parties;
(c) at the Fund's expense, and with the Fund's approval, notification and
promotional mailings and other communications provided by the Fund to
Shareholders regarding the availability of IMPRESSNet(R) Services;
[(d) PFPC shall prepare and process new account applications received
through IMPRESSNet(R) from Shareholders determined by the Fund to be eligible
for such services and in connection with such, the Fund agrees as follows:
(i) to permit the establishment of Shareholder bank account
information over the Internet in order to facilitate purchase
activity through the Automated Clearing House;
(ii) the ACH prenote process will be waived and the ACH status
will be set to active;
(iii) the Fund shall be responsible for any resulting gain/loss
liability associated with the ACH process
(iv) the maximum permitted initial purchase amount shall
be [$ ].]
(e) the set up of personal identification numbers ("PIN's"), as described
in the IMPRESSNet(R) Product Guide provided to the Fund, which shall include
verification of initial identification numbers issued, resetting and activation
of personalized PIN's and reissuance of new PIN's in the case of lost PIN's;
(f) installation services, which shall include reviewing and approving the
Fund's network requirements, recommending a method of establishing (and, as
applicable, cooperating with the Fund to implement and maintain) a hypertext
link between IMPRESSNet(R) and the Fund Web Site and testing the network
connectivity and performance;
(g) the establishment of systems to guide, assist and permit End-Users who
access IMPRESSNet(R) from the Fund Web Site to electronically perform Inquiries
and create and transmit Transaction requests to PFPC;
(h) delivery to the Fund of one (1) copy of the PFPC IMPRESSNet(R)Product
Guide, as well as all updates thereto on a timely basis;
(i) delivery of monthly billing reports to the Fund, which shall include
reports of Inquiries and Transactions processed on a monthly basis;
(j) a form of encryption that is generally available to the public in the
U.S. for standard Internet browsers and shall establish, monitor and verify
firewalls and other security features in a commercially reasonable manner and
shall exercise commercially reasonable efforts to maintain the security and
integrity of the PFPC Web Site and the End-User Data, in accordance with the
Fund's specifications;
(k) maintenance of all on-screen disclaimers, including, without
limitation, copyright, trademark and service xxxx notifications 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;
(l) monthly site visitation (hit reports) and other information regarding
End-User activity under this Agreement, and as agreed by PFPC and the Fund from
time to time;
(m) monitoring of the telephone lines involved in providing
IMPRESSNet(R)Services and shall inform the Fund promptly of and correct any
malfunctions or service interruptions;
(n) periodic scanning of its Internet interfaces and IMPRESSNet(R)for
viruses and shall promptly remove any such viruses located thereon;
(o) maintenance and support of IMPRESSNet(R), which shall include providing
error corrections, minor enhancements and interim upgrades to IMPRESSNet(R) made
generally available to IMPRESSNet(R) customers and providing help desk support
during the hours of 7:00 a.m. - 7:00 p.m., Eastern Standard Time, Monday through
Friday, and 7:00 a.m. - 5:00 p.m., Eastern Standard Time, on Saturday (other
than down-time during such hours for scheduled maintenance) to assist Fund
employees and End Users in furtherance of the Fund's use of IMPRESSNet(R);
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(R) clients, as determined solely by PFPC; or
(ii) maintenance of customized features; and
(p) access to IMPRESSNet(R) by End-Users via a logon I.D. and PIN
twenty-four (24) hours per day, each day of the year (excluding down time for
routine maintenance), which shall be secured and protected from unauthorized use
by commercially reasonable means, including Secure Sockets Layer (SSL)
encryption technology.
(q) the Fund recognizes and acknowledges that (i) End User's Web Browser
and ISP must support SSL encryption technology; and (ii) 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 C 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 hypertext
links to IMPRESSNet(R);
(b) promptly provide PFPC written notice of changes in Fund policies or
procedures requiring changes to the IMPRESSNet(R)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 for IMPRESSNet(R) Services, including the
Fund's privacy policy and user agreement, and disclaimers and other information
reasonably requested by PFPC; and
(e) design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to IMPRESSNet(R) 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(R)
Services, PFPC shall not be obligated to ensure or verify the accuracy or the
transmission of any Inquiry or Transaction request not actually received by PFPC
due to circumstances beyond the reasonable control of PFPC. The Fund shall
advise End-Users to promptly notify the Fund or PFPC of any errors or
inaccuracies in End-User Data or information transmitted via IMPRESSNet(R)
Services, so that PFPC may take steps to promptly correct such End-User Data or
transmittal.
5. ADDITIONAL FEES FOR IMPRESSNET(R)SERVICES. As consideration for the
performance by PFPC of IMPRESSNet(R) 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 C. 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 C 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 with the other party's consent, neither party nor any of its affiliates
shall disclose, use, copy, modify, create derivative works of, 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(R) may contain certain intellectual
property, including, but not limited to, rights in copyrighted works,
trademarks, tradenames, logos and trade dress that is the property of the other
party (collectively, "Intellectual Property"). 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. During the term of this Agreement, each party grants to the other a
non-exclusive, non-sublicensable, non-transferable, royalty-free license to
reproduce, display, distribute, perform and publicly and digitally use the other
party's Intellectual Property, and any and all rights contained therein, on each
party's respective web site, provided such use is necessary for the parties to
perform as contemplated in this Agreement. 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 and
shall indemnify the other party and its affiliates for breach of this warranty.
(c) Each of the parties acknowledges and agrees that the Fund will solely
and exclusively own all right, title and interest in and to any End-User Data
collected at the Fund Web Site or IMPRESSNet(R). PFPC's use of any End-User's
Data shall at all times be limited to providing the services contemplated in
this Agreement to that End User. PFPC and its affiliates shall comply with all
applicable privacy laws and regulations. Neither PFPC nor any of its affiliates
shall distribute, sell, rent, transfer or otherwise disclose End-User Data to
third parties without the prior written consent of the Fund, except as necessary
to third parties providing services relating to IMPRESSNet(R). PFPC further
shall cause such third party service providers to be subject to written
agreements establishing the same restrictions on the sale, transfer, use, rent
or disclosure of End-User Data and compliance with applicable privacy laws and
regulations.
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(R) 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
for any functions or malfunctions of the Internet beyond the reasonable control
of either party, provided that the Fund shall not be liable for, and shall be
indemnified by PFPC for, any claims of End-Users relating to viruses, system
failures or other interruptions of IMPRESSNet(R) Services due to the conduct of
PFPC or its third party service providers. Each party agrees the other shall not
be liable 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 IMPRESSNet(R) Services unless such party breached the standard
of care specified herein or the terms hereof with respect to such third party
acts or omissions.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS
SPECIFICALLY PROVIDED IN SECTIONS 2, 3, 4, AND 6 AND TO THE EXTENT LIMITED BY
LAW, ALL SOFTWARE AND SYSTEMS DESCRIBED IN THIS EXHIBIT C ARE PROVIDED "AS-IS"
ON AN "AS-AVAILABLE" BASIS, AND PFPC AND THE FUND HEREBY SPECIFICALLY DISCLAIM
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.
(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.comR 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 C and the Agreement, this Exhibit C shall control as to
XXXXXXXXxx.xxx(R) Services.
(c) Compliance with Law. Each Party shall be responsible for compliance
with all applicable laws, rules and regulations, if any, related to the
performance of its obligations under this Agreement.
EXHIBIT D
DISPUTE RESOLUTION PROCEDURES
As provided in the Agreement, the following procedures shall be used to resolve
any controversy or claim ("Dispute"). If any of these provisions are determined
to be invalid or unenforceable, the remaining provisions shall remain in effect
and binding on the parties to the fullest extent permitted by law.
MEDIATION
A Dispute shall be submitted to mediation by written notice to the other party
or parties. In the mediation process, the parties will try to resolve their
differences voluntarily with the aid of an impartial mediator, who will attempt
to facilitate negotiations. The mediator will be selected by agreement of the
parties. If the parties cannot agree on a mediator, a mediator will be
designated by the American Arbitration Association ("AAA") or JAMS/EnDispute at
the request of a party. Any mediator so designated must be acceptable to all
parties.
The mediation will be conducted as specified by the mediator and agreed upon by
the parties. The parties agree to discuss their differences in good faith and to
attempt, with the assistance of the mediator, to reach an amicable resolution of
the Dispute.
The mediation will be treated as a settlement discussion and therefore will be
confidential. The mediator may not testify for either party in any later
proceeding relating to the Dispute. No recording or transcript shall be made of
the mediation proceedings.
Each party will bear its own costs in the mediation. The fees and expenses of
the mediator will be shared equally by the parties.
ARBITRATION
If a Dispute has not been resolved within ninety (90) days after written notice
of the commencement of the mediation process (or a longer period, if the parties
agreed to extend the mediation), the mediation shall terminate and the Dispute
will be settled by arbitration The arbitration will be conducted in accordance
with the procedures in this document and the Commercial Arbitration Rules of the
AAA ("AAA Rules"). In the event of a conflict, the provisions of this document
will control.
The arbitration will be conducted before a panel of three arbitrators,
regardless of the size of the Dispute, to be selected as provided in the AAA
Rules. Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be governed by the Federation
Arbitration Act and resolved
by the arbitrators. No potential arbitrator may serve on the panel unless he or
she has agreed in writing to abide and be bound by these procedures.
Unless otherwise provided in the Agreement, the arbitrators may not award
non-monetary or equitable relief of any sort. They shall have no power to award
(i) damages inconsistent with the Agreement or (ii) punitive damages or any
other damages not measured by the prevailing party's actual damage, and the
parties expressly waive their right to obtain such damages in the arbitration or
in any other forum. In no event, even if any other portion of these provisions
is held to be invalid or unenforceable, shall the arbitrators have power to make
an award or impose a remedy that could not be made or imposed by a court
deciding the matter in the same jurisdiction.
No discovery will be permitted in connection with the arbitration unless it is
expressly authorized by the arbitration panel upon a showing of substantial need
by the party seeking discovery.
All aspects of the arbitration shall be treated as confidential. Neither the
parties nor the arbitrators may disclose the existence, content or results of
the arbitration, except as necessary to comply with legal or regulatory
requirements. Before making any such disclosure, a party shall give written
notice to all other parties and shall afford such parties a reasonable
opportunity to protect their interests.
The result of the arbitration will be binding on the parties, and judgment on
the arbitrators' award may be entered in any court having jurisdiction.
