Common use of Data Access and Proprietary Information Clause in Contracts

Data Access and Proprietary Information. 8.1 Each Fund and the Transfer Agent agree that the Proprietary Information (defined below) and the contents of this Agreement (collectively the "Confidential Information") are confidential information of the Funds and the Transfer Agent and their respective licensors. Each Fund and the Transfer Agent shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information of the other as it would exercise to protect its own confidential information of a similar nature. The Funds and the Transfer Agent shall not duplicate, sell or disclose to others the Confidential Information of the other, in whole or in part, without the prior written permission of the other party. The Funds and the Transfer Agent may, however, disclose Confidential Information to their respective parent corporation, their respective affiliates, their subsidiaries and affiliated companies and employees, provided that each shall use reasonable efforts to ensure that the Confidential Information is not duplicated or disclosed in breach of this Agreement. Proprietary Information means: (a) any data or information that is competitively sensitive material, and not generally known to the public, including, but not limited to, information about product plans, marketing strategies, finance, operations, customer relationships, customer lists, customer profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of the Funds or the Transfer Agent, their respective subsidiaries and affiliated companies and the 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 Funds or the Transfer Agent a competitive advantage over its competitors; and (c) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, know-how, show-how and trade secrets, whether or not patentable or copyrightable. 8.2 Without limiting the foregoing, each Fund agrees for itself and its employees and agents to: (a) Use such Proprietary Information (i) solely on the Fund's computers, or (ii) solely from equipment at the location agreed to between the Fund and the Transfer Agent and (iii) solely in accordance with the Transfer Agent's applicable user documentation; (b) Refrain from copying or duplicating in any way (other than in the normal course of performing processing on the Fund's computer(s)), the Proprietary Information; (c) Refrain from obtaining unauthorized access to any portion of the Proprietary Information, and if such access is inadvertently obtained, to inform in a timely manner of such fact and dispose of such information in accordance with the: Transfer Agent's instructions; (d) Refrain from causing or allowing information transmitted from the Transfer Agent's computer to the Fund's terminal to be retransmitted to any other computer terminal or other device except as expressly permitted by the Transfer Agent (such permission not to be unreasonably withheld); (e) Allow the Fund to have access only to those authorized transactions as agreed to between the Fund and the Transfer Agent; and (f) Honor all reasonable written requests made by the Transfer Agent to protect at the Transfer Agent's expense the rights of the Transfer Agent in Proprietary Information at common law, under federal copyright law and under other federal or state law. 8.3 Proprietary Information shall not include all or any portion of any of the foregoing items that: (i) are or become publicly available without breach of this Agreement; (ii) are released for general disclosure by a written release by the Transfer Agent; or (iii) are already in the possession of the receiving party at the time of receipt without obligation of confidentiality or breach of this Agreement. 8.4 The Transfer Agent and each Fund agree that they will not, at any time during the term of this Agreement or after its termination, reveal, divulge, or make known to any person, firm, corporation or other business organization, any customers' lists, trade secrets, cost figures and projections, profit figures and projections, or any other secret or confidential information whatsoever, whether of the Transfer Agent or of the Fund, used or gained by the transfer agent or the Fund during performance under this Agreement. Each Fund and the Transfer Agent further covenant and agree to retain all such knowledge and information acquired during and after the term of this Agreement respecting such lists, trade secrets, or any secret or confidential information whatsoever in trust for the sole benefit of the Transfer Agent or the Fund and their successors and assigns. In the event of breach of the foregoing by either party, the remedies provided by Section 8.5 shall be available to the party whose confidential information is disclosed. The above prohibition of disclosure shall not apply to the extent that the Transfer Agent must disclose such data to its sub-contractor or a Fund's agent for purposes of providing services under this Agreement. 8.5 Each Fund and the Transfer Agent acknowledge that their obligation to protect each other's Proprietary Information is essential to their business interests and that the disclosure of such Proprietary Information in breach of this Agreement would cause the non-breaching party immediate, substantial and irreparable harm, the value of which would be extremely difficult to determine. Accordingly, each Fund and the Transfer Agent agree that, in addition to any other remedies that may be available in law, equity, or otherwise for the disclosure or use of the Proprietary Information in breach of this Agreement, the non-breaching party shall be entitled to seek and obtain a temporary restraining order, injunctive relief, or other equitable relief against the continuance of such breach. 8.6 If any Fund or the Transfer Agent becomes legally compelled (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Fund will provide the Transfer Agent or vice versa, as the case may be, with prompt prior written notice of such requirements so that the Fund or the Transfer Agent may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the Fund and the Transfer Agent agree to disclose only that portion of the Confidential Information which they are advised by opinion of counsel is legally required to be disclosed and to take all reasonable steps to preserve the confidentiality of the Confidential Information (including by obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information). In addition, each Fund and the Transfer Agent agree to not oppose any action (and will, if and to the extent requested by the Fund or the Transfer Agent, cooperate with, assist and join with the Fund or the Transfer Agent, as the case may be, at the other party's expense, in any reasonable action) by the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. 8.7 Notwithstanding anything herein to the contrary, the Transfer Agent shall not, with respect to any "non-public personal information" (as such term is defined in Regulation S-P) pertaining to the Funds' investors, disclose such information to any unaffiliated third party or use such information other than for the purpose of providing the services contemplated by this Agreement, or otherwise permitted under Regulation S-P,or under another agreement covering such information. 8.8 If a Fund notifies the Transfer Agent that any of the Data Access Services do not operate in material compliance with the most recently issued user documentation for such services, the Transfer Agent shall endeavor in a timely manner to correct such failure. Organizations from which the Transfer Agent may obtain certain data included in the Data Access Services are solely responsible for the contents of such data and the Fund agrees to make no claim against the Transfer Agent arising out of the contents of such third-party data, including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTEES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8.9 If the transactions available to a Fund include the ability to originate electronic instructions to the Transfer Agent in order to (i) effect the transfer or movement of cash or Shares or (ii) transmit Shareholder information or other information, then in such event the Transfer Agent shall be entitled to rely on the validity and authenticity of such instruction without undertaking any further inquiry as long as such instruction is undertaken in conformity with Security Procedures. 8.10 Each of the Funds and the Transfer Agent shall take reasonable efforts to advise its employees of their obligations pursuant to this Section 8. The obligations of this Section shall survive any earlier termination of this Agreement.