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Exhibit (h)(3)
INBOUND CALL MANAGEMENT AND
FULFILLMENT SERVICES AGREEMENT
THIS AGREEMENT is made as of this 23rd day of April, 2000, by and
between e-▇▇▇▇▇▇ Funds, a Delaware business trust (the "Trust") and Sunstone
Distribution Services, LLC, a Wisconsin limited liability company ("Sunstone").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Act"), as an open-end management investment company which
is authorized to issue shares of beneficial interests in separate series with
each such series representing the interests in a separate portfolio of
securities and other assets;
WHEREAS, Sunstone offers various inbound call management and
fulfillment services to investment companies and others; and
WHEREAS, the Trust and Sunstone desire to enter into an agreement
pursuant to which Sunstone shall provide on behalf of the Trust certain inbound
call management and fulfillment services to such investment portfolios of the
Trust as are listed on Schedule A hereto and any additional investment
portfolios the Trust and Sunstone may agree upon and include on Schedule A as
such Schedule may be amended from time to time (such investment portfolios and
any additional investment portfolios are individually referred to as a "Fund"
and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
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 AND SERVICES
(a) The Trust hereby retains and does hereby authorize Sunstone to
provide the inbound call management and fulfillment services described in
Schedule B hereto, and Sunstone agrees to provide such services, for the period
and compensation and upon the terms set forth in this Agreement.
(b) The Trust, at its cost, shall provide Sunstone with the necessary
scripts, instructions and all materials (including prospectuses, reports,
article reprints, stationery and envelopes) so that Sunstone may provide the
services described herein. Notwithstanding anything herein to the contrary,
Sunstone shall not be required to provide any services or information that it
believes, in its sole discretion, to represent dishonest, unethical or illegal
activity. In no event shall Sunstone provide any investment advice or
recommendations to any party in connection with its services hereunder. All risk
of loss for the materials being inventoried by Sunstone on the Trust's behalf
shall be the responsibility of the Trust, and Sunstone shall not be responsible
for any loss to this material except as such loss may be caused by Sunstone's
negligence. Sunstone agrees to use due care in the storage of such materials
prior to their distribution. The Trust shall provide Sunstone from time to time
at the earliest practicable date with such details as may reasonably be required
concerning media schedules, anticipated call volume and other related
information so as to facilitate preparation by Sunstone to provide the services
hereunder.
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2. FEES AND EXPENSES
In consideration of the services rendered pursuant to this Agreement, the Trust
shall, to the extent permissible under applicable law, pay Sunstone such fees,
charges and expenses as are set forth in Schedule C hereto. Sunstone may, at its
option, arrange to have various service providers submit invoices directly to
the Trust for payment of out of pocket expenses reimbursable hereunder. All
invoices rendered by Sunstone shall be paid within fifteen (15) days of the date
of invoice. At the option of Sunstone, unpaid invoices accrue a finance charge
of one and one-half percent (1 1/2%) per month, after the due date, unless
Sunstone receives notice from the Trust in writing prior to the due date of any
disputed items from a particular invoice. If requested by Sunstone,
out-of-pocket expenses are payable in advance. In the event Sunstone requests
advance payment, Sunstone shall not be obligated to incur such expenses or
perform the related Service(s) until payment is received.
3. TERM; AMENDMENTS; ASSIGNMENT
(a) This Agreement shall become effective with respect to each Fund
listed on Schedule A as of the date hereof and, with respect to each Fund not in
existence on that date, on the date an amendment to Schedule A to this Agreement
relating to that Fund is executed. Unless sooner terminated as provided herein,
this Agreement shall continue in effect with respect to each Fund until Aril 23,
2002 (the "Initial Term"). Thereafter, if not terminated, this Agreement shall
continue automatically in effect as to each Fund for successive annual periods,
provided such continuance is specifically approved at least annually by (i) the
Trust's Board of Trustees including a majority of the Trust's Board of Trustees
who are not "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) and who have no
direct or indirect financial interest in the operation of the Agreement, by vote
cast in person at a meeting called for the purpose of voting on such approval,
and (ii) by the Distributor.
(b)This Agreement may be terminated with respect to any one or more
particular Funds without penalty, after the Initial Term, upon not less than
thirty (30) days' written notice to the other party (which notice may be waived
by the party entitled to such notice), by (i) the Distributor, or (ii) by vote
of a majority of the members of the Trust's Board of Trustees who are not
"interested persons" (as defined in the ▇▇▇▇ ▇▇▇) and who have no direct or
indirect financial interest in the operation of the Agreement or by vote of a
majority (as defined with respect to voting securities in the 1940 Act and Rule
18f-2 thereunder) of the outstanding voting securities of a Fund. This Agreement
shall also terminate automatically in the event of its assignment (as defined in
the 1940 Act). Upon termination of this Agreement, Sunstone shall promptly
return to the Trust all applicable materials that are the property of the Trust
at the Trust's expense. All amounts due and owing to Sunstone as of such
termination shall become immediately due and payable and the Trust shall pay
such amounts at the termination date.
(c)Except as expressly provided in this Agreement, the terms of this
Agreement shall not be waived, altered, modified, amended or supplemented in any
manner whatsoever except by a written instrument signed by Sunstone and the
Trust. Notwithstanding the above, Sunstone shall provide the Company with a copy
of its fee schedule as it is amended from time to time, and any such amendment
shall automatically be effective sixty (60) days after the date of amendment.
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4. NON-EXCLUSIVITY; CONFIDENTIALITY
(a)The services of Sunstone hereunder are not deemed to be exclusive.
Sunstone may render inbound call management and fulfillment services and any
other services to others, including other investment companies.
(b)Sunstone agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records relative
to the Funds' shareholders acquired in connection with its services hereunder,
and not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except after prior
notification to and approval by the Trust, which approval shall not be
unreasonably withheld and may not be withheld where Sunstone may be exposed to
civil or criminal proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, when subject to governmental
or regulatory audit or investigation, or when so requested by the Trust. Records
and information which have become known to the public through no wrongful act of
Sunstone or any of its employees or representatives, and information which was
already in the possession of the Sunstone prior to receipt thereof shall not be
subject to this paragraph.
5. LIMITATION OF LIABILITY
(a)In providing services hereunder, Sunstone shall not be liable for
any loss or damage, including counsel fees, resulting from its actions or
omissions to act or otherwise, in the absence of its willful misfeasance or
gross negligence in connection with its duties under this Agreement, or for any
loss or damage resulting from its actions or omissions in accordance with the
instructions, directions or requests of officers or authorized representatives
of the Trust.
(b)The Trust shall indemnify and hold harmless Sunstone from and
against any and all claims, actions, suits, demands, losses, expenses and
liabilities (including the costs of investigating or defending any alleged
claims, actions, suits, demands, losses, expenses and liabilities)
(collectively, "Losses") of any and every nature which Sunstone may sustain or
incur or which may be asserted against Sunstone by any person arising directly
or indirectly out of any action taken or omitted to be taken by Sunstone in
performing the services hereunder; provided that this indemnification shall not
apply to actions or omissions of Sunstone in cases of its own willful
misfeasance or gross negligence. As used in this Section 5(b), the term
"Sunstone" shall include past and present members, officers, employees,
representatives, authorized agents and assigns of Sunstone as well as Sunstone
and its affiliates themselves.
(c)Sunstone shall indemnify and hold harmless the Trust from and
against any and all Losses of any and every nature which the Trust may sustain
or incur or which may be asserted against the Trust by any person to the extent
such Losses arise out of Sunstone's willful misfeasance or gross negligence in
connection with its duties under this Agreement. As used in this Section 5(c),
the term "Trust" shall include past and present trustees, officers, employees,
representatives, authorized agents and assigns of the Trust as well as the Trust
and its affiliates themselves.
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(d) The Trust further agrees to indemnify, defend and hold harmless
Sunstone from and against any and all Losses which Sunstone may sustain or incur
or which may be asserted against Sunstone by any person arising out of or
resulting from the actions or omissions of Sunstone when acting in accordance
with the instructions, directions or requests of officers or representatives of
the Trust.
(e) Notwithstanding anything herein to the contrary, Sunstone will be
excused from its obligation to perform any act, service or obligation required
of it hereunder for the duration that such performance is prevented by events
beyond its reasonable control and it shall not be responsible for any damage,
loss of data, errors, delay or any other loss whatsoever caused thereby.
Sunstone will, however, take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond its
control. The indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this Agreement. Under
no circumstances shall Sunstone be liable for any incidental, consequential or
punitive damages, direct or indirect.
6. GOVERNING LAW; INVALIDITY
This Agreement shall be governed by Wisconsin law, excluding the laws on
conflicts of laws. 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 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the Act or any rule or order of the
Securities and Exchange Commission thereunder. Any provision of this Agreement
which 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.
7. MISCELLANEOUS
This Agreement and the Schedules incorporated hereto constitute the full and
complete understanding and agreement of Sunstone and the Trust and supersedes
all prior negotiations, understandings and agreements.
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8. NOTICES
Any notice required or permitted to be given by either party to the other shall
be in writing and shall be deemed to be effective upon the date specified on the
return receipt when sent by registered or certified mail, postage prepaid,
return receipt requested, as follows: Notice to Sunstone shall be sent to
Sunstone Distribution Services, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, and notice to the Trust shall be
sent to e-▇▇▇▇▇▇ Funds, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the day and year first above
written.
E-▇▇▇▇▇▇ FUNDS
(the "Trust")
By:
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President
SUNSTONE DISTRIBUTION SERVICES, LLC
("Sunstone")
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
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SCHEDULE A
TO THE
INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
BY AND BETWEEN
e-▇▇▇▇▇▇ FUNDS
AND
SUNSTONE DISTRIBUTION SERVICES, LLC
FUNDS
e-▇▇▇▇▇▇ Internet Fund
e-▇▇▇▇▇▇ Net30 Index Fund
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SCHEDULE B
TO THE
INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
BY AND BETWEEN
e-▇▇▇▇▇▇ FUNDS
AND
SUNSTONE DISTRIBUTION SERVICES, LLC
SERVICES
INBOUND CALL MANAGEMENT
o Standard business hours: 7 a.m. - 7 p.m. CST, Monday through Friday (except
major holidays)
o Qualify callers
o Provide detailed responses to fund inquiries (not scripted)
o Identify buyer/investment needs
o Automated voice response system
o Custom database maintenance
o Periodic activity reporting
o Names, addresses, telephone numbers and types of inquiries
o Call tracking, by:
o Fund
o Zip code or geographic region
o Source code
o Call switching
o Complex calls can be forwarded to fund, if desired
o Transfer calls to transfer agent
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FULFILLMENT
o Literature request standards
o Filled and mailed typically within 24 hours (but at least within 3 business
days with respect to all documents required by the SEC to be sent within
such timeframes).
o On-site inventory control
o Customized literature fulfillment
o Personalized letters developed by the Trust or by Sunstone (with prior
approval by the Trust)
o Customized investor kit assembly
o Fulfill literature requests downloaded from the Trust's Internet site
o Periodic reporting
o Kit report
o Advanced notice of need to order additional materials
MISCELLANEOUS
o Reference Manual maintenance and representative training.
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SCHEDULE C
TO THE
INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
BY AND BETWEEN
e-▇▇▇▇▇▇ FUNDS
AND
SUNSTONE DISTRIBUTION SERVICES, LLC
FEE SCHEDULE
o Set-up $ 5,000
Sunstone set up includes the following activities:
o Programming the phone system
o Programming Sunstone's proprietary prospect database
o Coordinating the installation/rerouting of the 800 number
o Coordinating the installation of the voice response unit
o Creating the Fund Reference Manual
o Overseeing initial representative training
o Base Fee $ 5,000/month
o Inbound calls
Live Representative $ 1.50/minute
o Email Services
Set up No Charge
Maintenance No Charge
Auto reply No Charge
Management Fee $ 2,500/month
Correspondence $ 3.25/email
o Voice Response Unit
Service $ .85/minute
Monthly Maintenance No Charge
o Transfers to Toll Number $ .85/minute
o Transfers to 800 Number $ .70/minute
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FULFILLMENT
o Standard package for mailing
Up to 3 pieces $ 0.85
Additional inserts $ 0.05 each
Personalized letter $ 1.00 each
o Follow-up letter $ 1.00 each
OTHER EXPENSES
Postage At cost
Bulk mailings Priced by project
Third party automated call processor At cost
Stickers/supplements $ 0.05 each
Bar coding $ 0.05 each
Conversion Tracking $ .10/record
Internet fulfillment requests $ .25/record
Facsimile (per sheet) $ 1.50
Photocopies $ 0.25
Express Deliveries At cost
Phone surcharges At cost
Customized monthly reports $150.00 each
Ad Hoc reports $150.00 and up
Customized programming $150.00/hour
Storage (per skid) $20.00/month
Special projects Priced by project
Long distance At cost