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EXHIBIT (h)(3)
INTERNET ACCESS AGREEMENT
THIS AGREEMENT is made and entered into as of this 11th day of September,
2000, by and between Calamos Investment Trust, a business trust organized under
the laws of the commonwealth of Massachusetts (hereinafter referred to as the
"Trust") and Firstar Mutual Fund Services, LLC, a limited liability company
organized under the laws of the State of Wisconsin (hereinafter referred to as
the "FMFS").
WHEREAS, the Trust is authorized to create separate series, each with its
own separate investment portfolio; and
WHEREAS, FMFS is a limited liability corporation and, among other things,
is in the business of administering transfer and dividend disbursing agent
functions for the benefit of its customers, including the Trust; and
WHEREAS, the Trust desires to purchase those electronic interactive
transaction processing services described on Exhibit A attached hereto
(collectively, the "Services") that Trust may select, from time to time, for use
by its shareholders ("End Users") to make inquiries and perform transactions to
their account(s) with the mutual funds listed on Exhibit A hereto and such other
funds as Trust and FMFS shall mutually agree from time to time (each a "Fund");
and
WHEREAS, FMFS agrees to provide the Trust with the electronic interactive
transaction processing services described in Exhibit A based upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and FMFS agree as follows:
1. TERM; RENEWAL; TERMINATION
A. The initial term of this Agreement shall be for a period commencing on
the date that the Services are first provided and ending one year from
that date.
B. This Agreement shall automatically renew for subsequent periods of one
(1) year each unless either party shall elect not to renew the
Agreement by providing written notice of nonrenewal to the other party
at least ninety (90) days prior to the expiration of any term.
C. The Trust may terminate this Agreement at any time (1) upon providing
ninety (90) days prior written notice of termination to FMFS or (2)
immediately by written notice to FMFS in the event that (i) FMFS is no
longer serving as the Trust's transfer agent, (ii) Trust determines
that amendments to procedures provided to it under Section 3.E are
unacceptable to Trust or (iii) Trust determines to terminate this
Agreement as permitted under Section 7.B. Termination of this
Agreement prior to the expiration of any term shall not entitle Trust
to a rebate of any Annual Maintenance Fee previously paid unless
termination is pursuant to this Section 1.C(2).
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2. COMPENSATION
The Trust agrees to pay FMFS for the performance of the duties listed in
this agreement as set forth on Exhibit A and/or Exhibit B attached hereto.
3. RESPONSIBILITIES OF FMFS
A. FMFS will make these Services to be available 24 hours a day, 7 days a
week, subject to scheduled maintenance and events outside of FMFS's
reasonable control. Unless an emergency is encountered, no routine
maintenance will occur during the hours of 8:00 a.m. to 3:00 p.m.
Central Time.
B. FMFS will issue to each End User who desires to use the Services a
unique personal identification number (PIN) for authentication
purposes, which may be changed upon End User's reasonable request in
accordance with policies to be determined by FMFS and Trust. FMFS will
require an End User to provide his/her PIN in order to access the
Services.
C. FMFS will provide the End User with a transaction confirmation number
for each completed purchase, redemption, or exchange of mutual fund
shares.
D. FMFS will utilize encryption and secure transport protocols intended
to prevent fraud and ensure confidentiality of End User accounts and
transactions. In no event shall FMFS use encryption weaker than 40-bit
RC4 Stream. FMFS will take reasonable actions to protect the Internet
website which provides the Services and its related network against
viruses, worms and other data corruption or disabling devices, and
unauthorized, fraudulent or illegal use by using appropriate virus
detection and destructive software and by adopting such other security
procedures as may be necessary.
E. FMFS will establish and provide to Trust written procedures, which may
be amended from time to time by FMFS with the written consent of
Trust, regarding End User access to the Services. The current
procedures are attached and incorporated herein by reference to this
Agreement. Such written procedures shall establish security standards
for the Services, including, without limitation:
1. Encryption/secure transport protocols.
2. End User lockout standards (e.g., lockout after three
unsuccessful attempts to gain access to the Services).
3. PIN issuance and reissuance standards.
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4. Access standards, including limits on access to End Users
whose accounts are coded for privilege.
5. Automatic logoff standards (e.g., if the session is inactive
for longer than 15 minutes).
F. FMFS will provide Trust and Trust's Adviser with daily reports of
transactions listing all purchases or transfers made on that day by
each End User separately. FMFS shall also furnish Trust and Trust's
Adviser with monthly reports summarizing shareholder inquiry and
transaction activity without listing all transactions.
G. FMFS will annually engage a third party to audit its internal controls
for the services and will provide Trust and Trust's Adviser with a
copy of the auditor's report promptly.
H. FMFS WARRANTS AND REPRESENTS THAT THE SERVICES WILL PERFORM AS
DESCRIBED IN EXHIBIT A AND/OR ANY OTHER DOCUMENTATION PROVIDED TO
TRUST BY FMFS WITH RESPECT TO THE SERVICES. EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, (1) THE SERVICES ARE PROVIDED BY FMFS "AS
IS" WITHOUT WARRANTY OF ANY KIND, (2) FMFS EXPRESSLY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. FMFS WILL PROMPTLY NOTIFY TRUST OF
ANY PROBLEMS OR ERRORS WITH THE SERVICES OF WHICH FMFS BECOMES AWARE.
4. RESPONSIBILITIES OF THE TRUST
The Trust assumes exclusive responsibility for the consequences of any
instructions it may give to FMFS, for Trust's or its End User's failure to
properly access the Services in the manner prescribed by FMFS, and for
Trust's failure to supply accurate information to FMFS.
5. RESPONSIBILITIES OF TRUST'S ADVISER
A. The Trust's Adviser shall be responsible to maintain one or more web
sites through which End Users may access the Services. Trust's Adviser
shall provide FMFS with the name of the host of Trust's web site
server and shall notify FMFS of any change to Trust's web site server
host.
B. The Trust's Adviser shall provide FMFS with such information and/or
access to each Fund's web site(s) as is necessary for FMFS to provide
the Services to End Users.
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C. Trust's Adviser shall promptly notify Trust and FMFS of any problems
or errors with the Services reported by End Users.
D. Trust's Adviser responsibility under this Agreement shall not extend
beyond the terms and conditions specifically stated herein.
6. FILE SECURITY AND RETENTION; CONFIDENTIALITY
A. FMFS and its agents will provide reasonable security provisions to
ensure that third parties do not have access to Trust's data bases,
files, and other information provided by Trust to FMFS for use with
the Services, or to End User transaction or account data (collectively
"Trust Files"). FMFS's security provisions for Trust and Trust's End
Users will be no less protective than FMFS's security provisions with
respect to its own proprietary information. FMFS agrees that any and
all Trust Files maintained by FMFS for Trust pursuant to this
Agreement shall be available for inspection by Trust's regulatory
authorities during regular business hours, upon reasonable prior
written notice to FMFS and will be maintained and retained in
accordance with applicable requirements of the Investment Company Act
of 1940. Except in the normal course of business and in conformity
with Federal copyright law or with Trust's consent, FMFS shall not
copy, decompile or reverse engineer any software provided to FMFS by
Trust. FMFS will take such actions as are necessary to protect the
intellectual property contained within the Trust's web site or any
software, written materials, or pictorial materials describing or
creating the Trust's website, including all interface designs or
specifications. The Trust grants FMFS a non-exclusive license for the
duration of this Agreement to copy the appearance of the Trust's web
site interface for the limited purpose of emulating the look and feel
of that website for use in connection with the services. Such
emulation is solely for the purpose of ensuring seamless integration
between the Trust's web site and the website on which the Services
will be provided. FMFS will take such actions as are necessary to
protect all rights to the source code and interface of Trust's
website.
B. FMFS agrees, in accordance with its own policies used to protect its
own information of similar confidentiality, to use its best efforts to
refrain from and prevent the use or disclosure of any confidential
information of the Trust, except when such use or disclosure is for
the purpose of providing the Services. Without limiting the foregoing,
FMFS will not use, or permit the use of, names of End Users for the
purpose of soliciting any business, product, or service whatsoever
except where the communication is necessary and appropriate for FMFS's
delivery of the Services.
FMFS shall treat as confidential and not disclose or otherwise make
available any of the Trust lists, Trust information, trade secrets,
processes, proprietary data, information or documentation of Trust
(collectively the "Confidential Information"), in any form, to any
person other than agents, employees or consultants of FMFS. FMFS will
instruct its agents, employees and consultants who have access to the
Confidential Information to keep such information confidential by
using the same care and
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discretion that FMFS uses with respect to its own confidential
property and trade secrets. Upon the termination of this Agreement for
any reason and upon Trust's request, FMFS shall return to Trust, or
destroy and certify to Trust that it has destroyed, any and all copies
of Confidential Information which are in its possession.
FMFS will not have an obligation of confidentiality under this
Paragraph 6.B with regard to information that (1) was known to it
prior to disclosure under this Agreement, (2) is or becomes generally
known to the public other than as a result of a breach of this
Agreement, (3) is disclosed to it by a third party not subject to a
duty of confidentiality or (4) is required to be disclosed under law
or by order of court or governmental agency.
7. LIMITATION OF LIABILITY; INDEMNIFICATION
A. Subject to Section 3.A, FMFS cannot and does not guarantee
availability of the Services. Accordingly, FMFS's sole liability to
Trust or any third party (including End Users) for any claims,
notwithstanding the form of such claims (e.g., contract, negligence,
or otherwise), arising out of the delay of or interruption in the
Services provided or to be provided by FMFS hereunder shall be to use
its best reasonable efforts to commence or resume the Services as
promptly as is reasonably possible.
B. Not withstanding the foregoing, FMFS shall, at its sole cost and
expense, defend, indemnify, and hold harmless Trust, its affiliates,
their respective assigns, and their respective officers, directors,
trustees, employees, agents, and servants, from and against any and
all claims, actions, suits, proceedings, costs, expenses, damages and
liabilities, including without limitation, reasonable attorneys' fees
and expenses arising out of or relating to (a) any infringement, or
claim of infringement, of any United States patent, trademark,
copyright, trade secret, or other proprietary rights based on the use
or potential use of the Services, (b) FMFS's breach, negligence,
intentional wrongful acts and willful misconduct in the performance of
its services hereunder, and (c) the provision of confidential
information of any End User to a person other than a person who has
provided proper identification for such End User as specified in
Section 3.B. This indemnity shall continue in full force and effect,
notwithstanding the termination of this Agreement.
C. If an injunction shall be obtained against Trust's use of the Services
by reasons of infringement of a patent, copyright, trademark, or other
proprietary rights of a third party, FMFS shall, at its own option and
expense, either (i) procure for Trust the right to continue to use the
Services on substantially the same terms and conditions as specified
in this Agreement, or (ii) after notification to Trust, replace or
modify the Services so that they become noninfringing, provided that,
in Trust's sole judgment, such replacement or modifications does not
materially and adversely affect the performance of the Services or
significantly lessen their utility to Trust. If in Trust's sole
judgment, such replacement or modification does materially adversely
affect the
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performance of the Services or significantly lessen their utility to
Trust, Trust may terminate this Agreement immediately on notice to
FMFS.
D. Each party hereto shall be excused from performance hereunder for any
period and to the extent that it is prevented from performing any
services pursuant hereto, in whole or in part, as a result of
unforeseen events beyond the control and without fault or negligence
of the party including, without limitation, delays caused by the other
party or an act of God, war, civil disturbance, court order, labor
dispute or third party nonperformance, and such nonperformance shall
not be a default hereunder or grounds for termination hereof so long
as the nonperforming party shall undertake all reasonable efforts to
rectify the situation that is the cause of the nonperformance.
E. FMFS shall not be responsible for the accuracy of input material nor
the resultant output derived from inaccurate input. The accuracy of
input and output shall be judged as received at FMFS's data center as
determined by the records maintained by FMFS.
F. IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR SPECIAL, INCIDENTAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES WHICH THE OTHER PARTY MAY INCUR OR
EXPERIENCE ON ACCOUNT OF ENTERING INTO, RELYING ON, OR PERFORMING THIS
AGREEMENT, REGARDLESS OF WHETHER THE DAMAGES ARE FOUNDED IN CONTRACT,
NEGLIGENCE, OR OTHER FORM OF ACTION, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NEITHER PARTY SHALL BE LIABLE FOR LOST
PROFITS, LOST BUSINESS, OR LOST GOODWILL OF THE OTHER PARTY.
G. A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of the Commonwealth of Massachusetts, and
notice is hereby given that this agreement is executed on behalf of
the Trustees of the Trust as Trustees and not individually, and that
the obligations of this instrument are not binding upon any of the
Trustees or shareholders individually but are binding only upon the
assets and property of the Trust or of the applicable series thereof.
8. NOTICES
Notices of any kind to be given by either party to the other party
shall be in writing and shall be duly given if mailed or delivered as
follows: Notice to FMFS shall be sent to:
FMFS Mutual Fund Services, LLC
Attn: Xxxx Xxxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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and notice to the Trust shall be sent to:
Calamos Asset Management, Inc.
Attn: Rhowena Blank
0000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
9. MISCELLANEOUS
This Agreement shall be governed and construed according to the internal
laws of the State of Wisconsin, excluding conflicts of law rules. This
Agreement may not be assigned by either party without the prior written
consent of the other party. No waiver of any right or obligation hereunder
shall be effective unless in writing and signed by the waiving party. If
any provision of this Agreement (or any portion thereof) shall be held to
be invalid, illegal, or unenforceable, the validity, enforceability, or
legality of the remainder of the Agreement shall not in any way be affected
or impaired thereby.
CALAMOS INVESTMENT TRUST FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ RHOWENA BLANK By: /s/ XXX X. XXXXXXX
------------------------------- -----------------------------
Attest: /s/ XXXXX X. XXXXXX, XX. Attest: /s/ XXX XXXX
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EXHIBIT A
INTERNET SERVICES
ANNUAL FEE SCHEDULE - SHAREHOLDER ACCESS
Separate Series of Calamos Investment Trust
NAME OF SERIES (DATE ADDED)
Convertible Fund (9/11/00)
Convertible Growth and Income Fund (9/11/00)
Market Neutral Fund (9/11/00)
Growth Fund (9/11/00)
Global Convertible Fund (9/11/00)
High Yield Fund (9/11/00)
Convertible Technology Fund (9/11/00)
Internet Services
Trust assistance with fund net site integration
Internet on-line access to shareholder account data subject to Firstar
security constraints
PIN administration through Firstar Trust service
Shareholder Transactions-exchange, redemption, purchase based upon
pre-authorized shareholder instructions
Fund Group Setup
Infrastructure/Technical Setup - $135.00 per hour (maximum $4,500.00)
Page Development/Customization - $135.00 per hour (maximum $6,700.00)
Annual Maintenance
First Year - $15,000 ($25,000 Inquiry and transactions)
Subsequent Years - $7,500 ($10,000 Inquiry and transactions)
Event Driven Charges
Account Inquiries - $ .10 per inquiry for the first 10,000 hits per month,
$.08 per inquiry for all hits in excess of 10,000 per month
Financial Transactions - $ .50 per financial transaction
PIN Administration - $ .40 per PIN assignment or acknowledgment
Firstar Trust Requirements
Trust net site
Provide content for site integration
Signed Firstar service agreement
Fees and out-of-pocket expenses are billed to the fund monthly.
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EXHIBIT B
INTERNET SERVICES
ANNUAL FEE SCHEDULE - FINANCIAL INTERMEDIARY ACCESS
Separate Series of Calamos Investment Trust
NAME OF SERIES (DATE ADDED)
Convertible Fund (9/11/00)
Convertible Growth and Income Fund (9/11/00)
Market Neutral Fund (9/11/00)
Growth Fund (9/11/00)
Global Convertible Fund (9/11/00)
High Yield Fund (9/11/00)
Convertible Technology Fund (9/11/00)
Internet Services - XXXXXXXXXX.xxx
BACK OFFICE
Back Office Broker Dealer Internet Access to Shareholder Account Data
Internet Inquiry Access Only - All TA Databases
Secure Access - Universal ID Setup
Unlimited Number of B/D Setups
Single Management Company Inquiry Access Included
No Charge to Broker Dealer
Call Center Support - Universal ID, Technical, Application Support
(800-560-8826)
Monthly Activity/Usage Reports to the Management Company
Service Charge Per Account Inquiry - $.05 per inquiry
FRONT OFFICE
All Back Office Functions Plus:
Office and Rep Access
Download Fund and Client Information
Broker Dealer Transactions
New Account Setup
Fund Sales & Marketing Material
Statements
Service Charges
Set Up Fee - $11,000 one-time
Monthly service fee - $1,333 per Management Company
Activity charges (billed monthly)
Account Inquiry - $.05 per inquiry
Financial Transactions - $.30 per transaction
Fund Sales and Marketing items - $.50 per item downloaded
New Account Setup/ w settlement - $1.50 per account