FUND ACCOUNTING SERVICING AGREEMENT
THIS
FUND
ACCOUNTING SERVICING AGREEMENT (this “Agreement”) is made and entered into this
___ day of _______________, 2006, by and between ALESCO
GLOBAL ADVISORS LLC, a
California limited liability company (“AGA”), and U.S.
BANCORP FUND SERVICES, LLC,
a
Wisconsin limited liability company (“USBFS”).
WHEREAS,
Marketocracy Funds, a Delaware statutory trust (the “Trust”) is registered under
the Investment Company Act of 1940, as amended (the “1940 Act”), as an open-end
management investment company and is authorized to issue shares of beneficial
interest in separate series, with each such series representing interests in
a
separate portfolio of securities and other assets;
WHEREAS,
AGA has been retained by the Trust to act as the administrator for, and is
obligated to provide certain administrative services to, each series of the
Trust that is listed on Exhibit
A
hereto
(as amended from time to time) (each the “Fund”);
WHEREAS,
USBFS is, among other things, in the business of providing fund accounting
services to investment companies; and
WHEREAS,
AGA, as the Fund’s administrator, desires to retain USBFS to provide accounting
services in respect of the Fund.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
| 1. |
Appointment
of USBFS as Fund
Accountant
|
AGA
hereby appoints USBFS as fund accountant in respect of the Fund, including
without limitation each class thereof, on the terms and conditions set forth
in
this Agreement, and USBFS hereby accepts such appointment and agrees to perform
the services and duties set forth in this Agreement. The services and duties
of
USBFS shall be confined to those matters expressly set forth herein, and no
implied duties are assumed by or may be asserted against USBFS
hereunder.
| 2. |
Services
and Duties of USBFS
|
USBFS
shall provide the following fund accounting services in respect of the Fund,
including without limitation each class thereof:
A. Portfolio
Accounting Services:
| (1) |
Maintain
portfolio records on a “trade date + 1” basis using security trade
information communicated from the Fund’s investment adviser.
|
1
| (2) |
For
each valuation date, obtain prices from a pricing source approved
by the
board of trustees of the Trust (the “Board of Trustees”) and apply those
prices to the Fund’s portfolio positions. For those securities where
market quotations are not readily available, the Board of Trustees
shall
approve, in good faith, procedures for determining the fair value
for such
securities.
|
| (3) |
Identify
interest and dividend accrual balances as of each valuation date
and
calculate gross earnings on investments for each accounting period.
|
| (4) |
Determine
gain/loss on security sales and identify them as short-term or long-term;
account for periodic distributions of gains or losses to shareholders
and
maintain undistributed gain or loss balances as of each valuation
date.
|
| (5) |
On
a daily basis, reconcile cash of the Fund with the Fund’s
custodian.
|
| (6) |
Transmit
a copy of the portfolio valuation to the Fund’s investment adviser
daily.
|
| (7) |
Review
the impact of current day’s activity on a per share basis, and review
changes in market value.
|
B. Expense
Accrual and Payment Services:
| (1) |
For
each valuation date for the Fund, including without limitation each
class
thereof, calculate the expense accrual amounts as directed by AGA
as to
methodology, rate or dollar amount.
|
| (2) |
Process
and record payments for Fund expenses, including without limitation
each
class thereof, upon receipt of written authorization from AGA.
|
| (3) |
Account
for Fund, including without limitation each class thereof, expenditures
and maintain expense accrual balances at the level of accounting
detail,
as agreed upon by USBFS and AGA.
|
| (4) |
Provide
expense accrual and payment reporting.
|
C. Fund
Valuation and Financial Reporting Services:
| (1) |
Account
for Fund, including without limitation each class thereof, share
purchases, sales, exchanges, transfers, dividend reinvestments, and
other
Fund, including without limitation each class thereof, share activity
as
reported by the Fund’s transfer agent on a timely basis.
|
2
| (2) |
Apply
equalization accounting as directed by
AGA.
|
| (3) |
Determine
net investment income (earnings) for the Fund, including without
limitation each class thereof, as of each valuation date. Account
for
periodic distributions of earnings to shareholders and maintain
undistributed net investment income balances as of each valuation
date.
|
| (4) |
Maintain
a general ledger and other accounts, books, and financial records
for the
Fund, including without limitation each class thereof, in the form
as
agreed upon.
|
| (5) |
Determine
the net asset value of the Fund, including without limitation each
class
thereof, according to the accounting policies and procedures set
forth in
the Fund's current prospectus and statement of additional information
(collectively the “Prospectus”).
|
| (6) |
Calculate
per share net asset value, per share net earnings, and other per
share
amounts reflective of Fund, including without limitation each class
thereof, operations at such time as required by the nature and
characteristics of the Fund, including without limitation each class
thereof,.
|
| (7) |
Communicate
to AGA, at a time agreed upon by AGA and USBFS, the per share net
asset
value for each valuation date for the Fund, including without limitation
each class thereof.
|
| (8) |
Prepare
monthly reports that document the adequacy of accounting detail to
support
month-end ledger balances.
|
| (9) |
Prepare
monthly security transactions
listings.
|
D. Tax
Accounting Services:
| (1) |
Maintain
accounting records for the investment portfolio of the Fund to support
the
tax reporting required for “regulated investment companies” under the
Internal Revenue Code of 1986, as amended (the
“Code”).
|
| (2) |
Maintain
tax lot detail for the Fund’s investment portfolio.
|
| (3) |
Calculate
taxable gain/loss on security sales using the tax lot relief method
designated by AGA.
|
3
| (4) |
Provide
the necessary financial information to calculate the taxable components
of
income and capital gains distributions to support tax reporting to
the
shareholders.
|
E. Compliance
Control Services:
| (1) |
Support
reporting to regulatory bodies and support financial statement preparation
by making the Fund's accounting records available to AGA, the Fund
and the
Trust, the Securities and Exchange Commission (the “SEC”), and the Fund’s
independent public accountants.
|
| (2) |
Maintain
accounting records according to the 1940 Act and regulations provided
thereunder.
|
| (3) |
Perform
its duties hereunder in compliance with all applicable laws and
regulations and provide any sub-certifications reasonably requested
by AGA
in connection with any certification required of the Trust or AGA
pursuant
to the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”) or any rules or
regulations promulgated by the SEC thereunder; provided, however,
the same
shall not be deemed to change USBFS’s standard of care as set forth
herein.
|
| (4) |
Cooperate
with the Fund’s independent public accountants and take all reasonable
action 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 on the Fund’s financial
statements without any qualification as to the scope of their
examination.
|
| 3. |
License
of Data; Warranty; Termination of Rights; Liabilities;
Indemnity
|
| A. |
The
valuation information and evaluations being provided to AGA in respect
of
the Fund and the Trust pursuant hereto (collectively, the “Data”) by USBFS
and its supplier of the Data, FT Interactive (“Supplier”), are licensed,
not sold, hereby to AGA for use in pricing the assets of the Fund
and the
Trust. AGA has a limited license to use the Data only for purposes
necessary to valuing the Fund’s and the Trust’s assets and reporting to
regulatory bodies (the “License”). Neither AGA, the Fund nor the Trust has
any license nor right to use the Data for purposes beyond the intentions
of this Agreement including, but not limited to, resale to other
users or
use to create any type of historical database. The License is
non-transferable and not sub-licensable. AGA’s rights to use the Data in
respect of the Fund and the Trust cannot be passed to or shared with
any
other entity except as intended
hereby.
|
AGA
acknowledges the proprietary rights that USBFS and Supplier have in the
Data.
4
| B. |
AGA
HEREBY ACCEPTS THE DATA AS IS, WHERE IS, WITH NO WARRANTIES, EXPRESS
OR
IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR ANY
OTHER
MATTER.
|
| C. |
USBFS
may stop supplying some or all Data to AGA if Supplier terminates
its
agreement to provide Data to USBFS. Also, USBFS may stop supplying
some or
all Data to AGA if Supplier reasonably believes that AGA, the Fund
or the
Trust is using the Data in violation of the License, or AGA is breaching
its duties of confidentiality provided for hereunder, or if Supplier
demands that the Data be withheld from AGA, the Fund or the Trust.
USBFS
will provide notice to AGA, the Fund and the Trust of any termination
of
provision of Data as soon as reasonably
possible.
|
| D. |
As
between AGA, USBFS and Supplier in respect of the Data and Supplier’s
provision thereof (the “Services”):
|
| (1) |
Supplier
shall have no liability to AGA, or a third party, for errors, omissions
or
malfunctions in the of the Data and the Services, other than the
obligation of Supplier to endeavor, upon receipt of notice from AGA
or
USBFS, to correct a malfunction, error, or omission in the Data or
the
Services.
|
| (2) |
AGA
acknowledges that the Services are intended for use as an aid to
institutional investors, registered brokers or professionals of similar
sophistication in making informed judgments concerning securities.
|
| (3) |
AGA
accepts responsibility for, and acknowledges it exercises its own
independent judgment in, its selection of the Services, its selection
of
the use or intended use of such, and any results obtained. Nothing
contained herein shall be deemed to be a waiver of any rights existing
under applicable law for the protection of investors.
|
| (4) |
AGA
shall indemnify Supplier and its suppliers against and hold Supplier
harmless from any and all losses, damages, liability, costs, including
attorney's fees, resulting directly or indirectly from any claim
or demand
against Supplier or its suppliers by a third party arising out of
or
related to the accuracy or completeness of any Services received
by AGA,
or any data, information, service, report, analysis or publication
derived
therefrom. Neither Supplier or its suppliers shall be liable for
any claim
or demand against AGA by a thud party.
|
| (5) |
Neither
AGA nor Supplier shall be liable for (a) any special, indirect or
consequential damages (even if advised of the possibility of such),
(b)
any delay by reason of circumstances beyond its control, including
acts of
civil or military authority, national emergencies, labor difficulties,
fire, mechanical breakdown, flood or catastrophe, acts of God,
insurrection, war, riots, or failure beyond its control of transportation
or power supply, or (c) any claim that arose more than one year prior
to
the institution of suit therefor.
|
5
| (6) |
Access
to the Services or a portion thereof is subject to termination in
the
event that any agreement between Supplier and a third party data
supplier
is terminated. AGA acknowledges that Supplier's third party data
suppliers
may have the right to cause the termination of USBFS's provision
of the
Services to AGA, with or without notice, and that neither any such
third
party data supplier nor Supplier shall have any liability in connection
therewith
|
| 4. |
Pricing
of Securities
|
| A. |
If
AGA desires to provide a price that varies from the price provided
by the
pricing source pursuant to Section 2.A(2) hereof, AGA shall promptly
notify and supply USBFS with the price of any such security on each
valuation date. All pricing changes made by AGA will be in writing
and
must specifically identify the securities to be changed by CUSIP,
name of
security, new price or rate to be applied, and, if applicable, the
time
period for which the new price(s) is/are
effective.
|
| B. |
In
the event that AGA, the Fund or the Trust at any time receives Data
containing evaluations, rather than market quotations, for certain
securities or certain other data related to such securities, the
following
provisions will apply:
|
| (1) |
Evaluated
securities are typically complicated financial instruments. There
are many
methodologies (including computer-based analytical modeling and individual
security evaluations) available to generate approximations of the
market
value of such securities, andthere is significant professional
disagreement about which method is best. No evaluation method, including
those used by Supplier, may consistently generate approximations
that
correspond to actual “traded” prices of the
securities.
|
| (2) |
Methodologies
used by Supplier to provide the pricing portion of certain Data may
rely
on evaluations; however, AGA acknowledges that there may be errors
or
defects in the software, databases, or methodologies generating the
evaluations that may cause resultant evaluations to be inappropriate
for
use in certain applications
|
| (3) |
AGA
assumes all responsibility for edit checking, external verification
of
evaluations, and ultimately the appropriateness of using Data containing
evaluations, regardless of any efforts made by Supplier in this
respect.
|
6
| (4) |
AGA
shall indemnify and hold Supplier completely harmless in the event
that
errors defects, or inappropriate evaluations are made available via
the
Service or the Data.
|
| 5. |
Changes
in Accounting Procedures
|
Any
resolution passed by the Board of Trustees that affects accounting practices
and
procedures under this Agreement shall be effective upon receipt of notice in
writing and acceptance by USBFS, which shall not be unreasonably withheld.
| 6. |
Changes
in Equipment, Systems,
Etc.
|
USBFS
reserves the right to make changes from time to time, as it deems advisable,
relating to its systems, programs, rules, operating schedules and equipment,
so
long as such changes do not adversely affect the services provided in respect
of
the Fund under this Agreement.
| 7. |
Compensation
|
AGA
shall
compensate USBFS for providing the services set forth in this Agreement in
accordance with the fee schedule set forth on Exhibit
B
hereto
(as amended from time to time). AGA also shall reimburse USBFS for such
out-of-pocket expenses (e.g.,
telecommunication charges, postage and delivery charges, and reproduction
charges) as are reasonably incurred by USBFS in performing its duties hereunder.
AGA shall pay all such fees and reimbursable expenses within thirty (30)
calendar days following receipt of the billing notice, except for any fee or
expense subject to a good faith dispute. AGA shall notify USBFS in writing
within thirty (30) calendar days following receipt of each invoice if AGA is
disputing any amounts in good faith. AGA shall pay such disputed amounts within
ten (10) calendar days of the day on which the parties agree to the amount
to be
paid. With the exception of any fee or expense AGA is disputing in good faith
as
set forth above, unpaid invoices shall accrue a finance charge at the lower
of
the rate of (i) one and one half percent (1½%) per month after the due date, and
(ii) the maximum rate permitted by applicable law, after the due date.
Notwithstanding anything to the contrary, amounts owed by AGA to USBFS hereunder
are not the obligations, and shall not be paid out of the assets and property,
of the Fund or the Trust.
| 8. |
Representations
and Warranties
|
| A. |
AGA
hereby represents and warrants to USBFS, which representations and
warranties shall be deemed to be continuing throughout the term of
this
Agreement applicable to the Fund,
that:
|
|
(1)
|
Each
of AGA and the Trust is duly organized and existing under the laws
of the
States of California and Delaware, respectively, with full power
to carry
on its business as now conducted and to have AGA enter into this
Agreement
and to perform AGA’s obligations
hereunder;
|
7
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by AGA
in
accordance with all requisite manager, member and officer actions
and
constitutes the valid and legally binding obligation of AGA, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
the rights and remedies of creditors and secured parties;
and
|
|
(3)
|
Each
of AGA, the Fund and the Trust is conducting its business in compliance
in
all material respects with all applicable laws and regulations, both
state
and federal, and has obtained all regulatory approvals necessary
to carry
on its business as now conducted; there is no statute, rule, regulation,
order or judgment binding on either AGA, the Fund or the Trust, and
no
provision of its charter, bylaws or any contract binding it or affecting
its property that would prohibit AGA’s execution or performance of this
Agreement.
|
| B. |
USBFS
hereby represents and warrants to AGA, the Fund and the Trust, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
|
|
(1)
|
USBFS
is duly organized and existing under the laws of the State of Wisconsin,
with full power to carry on its business as now conducted, to enter
into
this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite manager, member and officer actions
and
constitutes the valid and legally binding obligation of USBFS, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
the rights and remedies of creditors and secured parties;
and
|
|
(3)
|
USBFS
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
|
| 9. |
Standard
of Care; Indemnification; Limitation of
Liability
|
8
| A. |
USBFS
shall exercise reasonable care in the performance of its duties under
this
Agreement. USBFS shall not be liable for any error of judgment or
mistake
of law or for any loss suffered by AGA, the Fund or the Trust in
connection with its duties under this Agreement, including without
limitation losses resulting from mechanical breakdowns or the failure
of
communication or power supplies beyond USBFS’s reasonable control, except
a loss arising out of or relating to USBFS’s refusal or failure to comply
with the terms of this Agreement or from its bad faith, negligence,
or
willful misconduct in the performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if USBFS has
exercised reasonable care in the performance of its duties under
this
Agreement, AGA (but not the Fund or the Trust) shall indemnify and
hold
harmless USBFS from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including without
limitation reasonable attorneys’ fees) that USBFS may
sustain or incur or that may be asserted against USBFS by any person
arising out of or related to any action taken or omitted to be taken
by
USBFS in performing the services hereunder (i) in accordance with
the
foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to USBFS by any duly authorized officer or employee
of AGA or an officer of the Trust (other than an officer that also
is an
employee of USBFS or an affiliate of USBFS), each such person as
approved
by the Board of Trustees of the Trust, except for any and all claims,
demands, losses, expenses, and liabilities arising out of or relating
to
USBFS’s refusal or failure to comply with the terms of this Agreement or
from its bad faith, negligence or willful misconduct in the performance
of
its duties under this Agreement. As used in this paragraph, the term
“USBFS” shall include USBFS’s managers, members, officers and employees.
Notwithstanding anything to the contrary, amounts owed by AGA to
USBFS
pursuant to this Section 9.A are not the obligations, and shall not
be
paid out of the assets and property, of the Fund or the
Trust.
|
AGA
acknowledges that the Data are intended for use as an aid to institutional
investors, registered brokers or professionals of similar sophistication in
making informed judgments concerning securities. AGA accepts responsibility
for,
and acknowledges it exercises its own independent judgment in, its selection
of
the Data, its selection of the use or intended use of such, and any results
obtained. Nothing contained herein shall be deemed to be a waiver of any rights
existing under applicable law for the protection of investors.
USBFS
shall indemnify and hold each of AGA, the Fund and the Trust harmless from
and
against any and all claims, demands, losses, expenses, and liabilities of any
and every nature (including without limitation reasonable attorneys' fees)
that
AGA, the Fund or the Trust may sustain or incur or that may be asserted against
AGA, the Fund or the Trust by any person arising out of any action taken or
omitted to be taken by USBFS as a result of USBFS’s refusal or failure to comply
with the terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. As used in
this paragraph, the terms “AGA” and “Trust” shall include AGA’s and the Trust’s
respective trustees, directors, managers, members, officers and
employees.
9
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its reasonable control (each a “service interruption”), USBFS shall take
all reasonable steps to minimize such service interruption for any period that
such service interruption continues. At its own expense, USBFS shall make every
reasonable effort to restore any lost or damaged data and correct any errors
resulting from such service interruption. USBFS agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of substitute electrical data processing
equipment as provided in such contingency plans. Representatives of AGA, the
Fund or the Trust shall be entitled to inspect USBFS’s premises and operating
capabilities at any time during regular business hours of USBFS, upon reasonable
notice to USBFS. Moreover, USBFS shall provide AGA, the Fund and the Trust,
at
such times as AGA, the Fund or the Trust may reasonably require, copies of
reports rendered by independent public accountants on the internal controls
and
procedures of USBFS relating to the services provided by USBFS under this
Agreement.
Notwithstanding
the provisions of Section 9.A above, USBFS reserves the right to reprocess
and
correct administrative errors at its own expense.
Notwithstanding
any other provision of this Agreement, neither party to this Agreement shall
be
liable to the other party for consequential, special or punitive damages under
any provision of this Agreement.
| B. |
In
order that the indemnification provisions contained in this section
shall
apply, it is understood that if in any case the indemnitor may be
asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be
fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will use
all
reasonable care to notify the indemnitor promptly concerning any
situation
that presents or appears likely to present the probability of a claim
for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will
so
notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this Section 9. The indemnitee shall in no
case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
|
| C. |
The
indemnity and defense provisions set forth in this Section 9 shall
indefinitely survive the termination and/or assignment of this
Agreement.
|
10
| D. |
If
USBFS is acting in another capacity for the Trust pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any
of its
obligations in such other capacity.
|
| 10. |
Notification
of Error
|
AGA
or
the Fund will notify USBFS of any discrepancy between USBFS and the Trust
corresponding records, including, but not limited to, failing to account for
a
security position in the Fund’s portfolio, upon the later to occur of: (i) three
(3) business days after receipt of any reports rendered by USBFS to the Trust;
(ii) three (3) business days after discovery of any error or omission not
covered in the balancing or control procedure; or (iii) three (3) business
days
after receiving notice from any shareholder regarding any such
discrepancy.
| 11. |
Data
Necessary to Perform
Services
|
AGA,
the
Fund, the Trust or its respective agent shall furnish to USBFS the data
necessary to perform the services described herein at such times and in such
form as mutually agreed upon.
| 12. |
Proprietary
and Confidential
Information
|
| A. |
USBFS
agrees, on behalf of itself and its managers, members, officers,
and
employees, to treat confidentially and as proprietary the respective
information of AGA, the Fund and the Trust, all records and other
information relative to AGA, the Fund and the Trust and prior, present,
or
potential shareholders of the Fund or of the Trust (and clients of
said
shareholders) (“Confidential Information”), and not to disclose to third
parties or use Confidential Information for any purpose other than
the
performance of its responsibilities and duties hereunder, except
that
USBFS may disclose Confidential Information to the extent (i) after
prior
notification to, and approval in writing by, AGA, the Fund or the
Trust,
as the case my be, or (ii) when required to divulge such information
by
duly constituted governmental or judicial authorities having competent
jurisdiction over USBFS and if failure of USBFS to comply would subject
USBFS to civil or criminal contempt proceedings; provided, however,
that
prior to any such disclosure by USBFS, to the extent not legally
prohibited from so doing, USBFS provides AGA, the Fund and the Trust
with
reasonably prompt notice of such request so that AGA, the Fund or
the
Trust may have an opportunity to take appropriate action before such
governmental or judicial authority to prevent such disclosure, or
(iii)
when so requested by AGA, the Fund or the Trust in writing.
|
| B. |
Records
and other information that are Confidential Information but that
(i) have
become known to the public through no breach of any obligation of
confidentiality or other wrongful act of USBFS or any of its managers,
members, officers, employees, agents or representatives, and (ii)
information that was already in the possession of USBFS prior to
receipt
thereof from AGA, the Fund or the Trust or its respective agent,
whether
or not pursuant to this Agreement, shall not be subject to Section
12.A
hereof, but in each case only to the extent that AGA, the Fund and
the
Trust are not subject to obligations under (i) AGA, the Fund, or
the
Trust’s confidentiality policies or procedures, (ii) agreements with third
parties, or (iii) applicable laws, rules or regulations, to keep
confidential, and restrict the use of, such Confidential
Information.
|
11
| C. |
Notwithstanding
any other provision of this Section 12, USBFS shall adhere to the
privacy
policies adopted by the Trust pursuant to Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time.
|
| D. |
At
all times that USBFS or any of its affiliates has Confidential Information
in its possession or under its control, USBFS shall have in place
and
maintain physical, electronic and procedural safeguards reasonably
designed to protect the security, confidentiality and integrity of,
and to
prevent unauthorized access to or use of, Confidential Information.
|
| E. |
AGA,
on behalf of itself and its directors, officers, and employees, will
maintain the confidential and proprietary nature of the Data and
agrees to
protect it using the same efforts, but in no case less than reasonable
efforts, that it uses to protect its own proprietary and confidential
information.
|
| 13. |
Records
|
USBFS
shall keep records relating to the services to be and actually performed
hereunder in the form and manner, and for such period, as it may deem advisable
and is agreeable to AGA, but not inconsistent with the rules and regulations
of
appropriate government authorities, in particular, Section 31 of the 1940 Act
and the rules thereunder. USBFS agrees that all such records prepared or
maintained by USBFS relating to the services to be performed by USBFS hereunder
are the property of the Trust and will be preserved, maintained, and made
available to appropriate regulatory authorities in accordance with such
applicable sections and rules of the 1940 Act and will be promptly surrendered
to the Trust or its designee (including without limitation AGA) on and in
accordance with its request.
| 14. |
Compliance
with Laws
|
AGA
acknowledges and agrees that the Trust has and retains primary responsibility
for all compliance matters relating to the Fund, including but not limited
to
compliance with the 1940 Act, the Code, the SOX Act, the USA Patriot Act of
2002
and the policies and limitations of the Fund relating to its portfolio
investments as set forth in its current Prospectus. USBFS’s services hereunder
shall not relieve the Trust of its responsibilities for assuring such compliance
or the Board of Trustee’s oversight responsibility with respect
thereto.
12
| 15. |
Term
of Agreement; Amendment
|
This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of three (3) years. Subsequent to the initial
three-year term, this Agreement may be terminated by either party upon giving
ninety (90) days prior written notice to the other party or such shorter period
as is mutually agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the other party
of
any material term of this Agreement if such breach is not cured within fifteen
(15) days of notice of such breach to the breaching party. This Agreement may
not be amended or modified in any manner except by written agreement executed
by
USBFS and AGA, and authorized or approved by the Board of Trustees.
| 16. |
Duties
in the Event of
Termination
|
In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by AGA, the Fund or the Trust by
written notice to USBFS, USBFS, upon such termination and at the expense of
AGA,
promptly shall transfer to such successor all relevant books, records,
correspondence and other data established or maintained by USBFS under this
Agreement in a form reasonably acceptable to AGA, the Fund and the Trust (if
such form differs from the form in which USBFS has maintained the same, AGA
shall pay any reasonable expenses associated with transferring the data to
such
form), and shall cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS’s personnel in the establishment
of books, records and other data by such successor. If no such successor is
designated, then such books, records and other data shall be returned to the
Trust or its designee (including without limitation AGA).
| 17. |
Assignment
|
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by AGA without the written consent of USBFS, or by USBFS
without the written consent of AGA, and authorized or approved by the Board
of
Trustees.
| 18. |
Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the SEC thereunder.
| 19. |
No
Agency Relationship
|
13
Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
| 20. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
| 21. |
Invalidity
|
Any
provision of this Agreement that may be determined by competent authority to
be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties for purposes solely for such jurisdiction
and
only to the extent necessary to avoid such prohibition or unenforceability,
and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
| 22. |
Notices
|
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three (3) days after sent by registered
or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
14
and
notice to AGA shall be sent to:
Alesco
Global Advisors LLC
000
X. Xx
Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attention:
Chief Executive Officer
with
a
copy to the Fund and the Trust sent to:
0000
Xxxx
Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attention:
President
| 23. |
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
|
ALESCO
GLOBAL ADVISORS LLC
|
U.S.
BANCORP FUND SERVICES, LLC
|
|
By:
______________________________
|
By:
______________________________
|
|
Name:
Xxx X. Xxxxx
|
Name:
Xxx X. Xxxxxxx
|
|
Title:
Chief Executive Officer
|
Title:
President
|
15
Exhibit
A
to
the
Fund
Accounting Servicing Agreement - Alesco Global Advisors
LLC
Fund
Names
Separate
Series of Marketocracy Funds
| Name of Series | Date Added |
|
AGA
Total Return Realty Fund
|
Effective
on or about [_________ __, 2006]
|
Class
A
Shares
Class
K
Shares
A-1
