INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
EX
-
99(h)(iii)
INBOUND
CALL MANAGEMENT AND
FULFILLMENT
SERVICES AGREEMENT
THIS
AGREEMENT is made as of this 19th day of October, 2007, by and between The
Westport Funds, a Delaware statutory trust (the “Trust”), and UMB Distribution
Services, LLC (“UMBDS”).
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,
UMBDS offers various inbound call management and fulfillment services to
investment companies and others; and
WHEREAS,
the Trust and UMBDS desire to enter into an agreement pursuant to which UMBDS
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 UMBDS
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:
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1.
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Appointment
and Services
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(a) The
Trust
hereby retains and does hereby authorize UMBDS to provide the inbound call
management and fulfillment services described in Schedule B hereto, and UMBDS
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 UMBDS with the necessary scripts, instructions
and all materials (including prospectuses, reports, article reprints, stationery
and envelopes) so that UMBDS may provide the services described herein.
Notwithstanding anything herein to the contrary, UMBDS 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 UMBDS
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
UMBDS on the Trust’s behalf shall be the responsibility of the Trust, and UMBDS
shall not be responsible for any loss to this material except as such loss
may
be caused by UMBDS’ negligence. UMBDS agrees to use due care in the storage of
such materials prior to their distribution. The Trust shall provide UMBDS 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 UMBDS to provide
the services hereunder.
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(c) The
Trust
shall use its best efforts to cause the Trust’s officers, trustees, investment
adviser(s) and sub-advisers, legal counsel, independent accountants, custodian
and other service providers and agents, past or present, for the Funds to
cooperate with UMBDS and to provide UMBDS with such information, documents
and
advice as necessary and/or appropriate or as requested by UMBDS, in order to
enable UMBDS to perform its duties hereunder. In connection with its duties
hereunder, UMBDS shall (without investigation or verification) be entitled,
and
is hereby instructed to, rely upon any and all instructions, advice, information
or documents provided to UMBDS by an officer or representative of the Funds
or
by any of the aforementioned persons. UMBDS shall be entitled to rely on any
document that it reasonably believes to be genuine and to have been signed
or
presented by the proper party. Fees charged by such persons shall be paid in
accordance with Section 2. UMBDS shall not be held to have notice of any change
of authority of any officer, agent, representative or employee of the Trust,
investment adviser(s) or service provider until receipt of written notice
thereof from the Trust. As used in this Agreement, the term “investment adviser”
includes all sub-advisers or persons performing similar services.
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2.
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Fees
and Expenses
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The
parties acknowledge that Westport Advisers, LLC, the investment adviser of
the
Funds, has entered into separate arrangements to compensate UMBDS for certain
services provided by UMBDS.
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3.
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Term;
Amendments; Assignment
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(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. This Agreement shall continue in effect with respect to each
Fund until August 31, 2009, 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 or (ii) the vote of a
majority (as defined in the Act and Rule 18f-2 thereunder) of the outstanding
voting securities of a Fund, and provided that in either event the continuance
is also approved by a majority of the Trust’s Board of Trustees who are not
“interested persons” (as defined in the Act) of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval.
(b) This
Agreement may be terminated by either party with respect to any one or more
particular Funds without penalty upon not less than sixty (60) days’ written
notice to the other party which notice may be waived by the party entitled
to
such notice. Upon termination of this Agreement, UMBDS shall promptly return
to
the Trust all applicable materials that are the property of the Trust. All
amounts due and owing to UMBDS as of such termination shall become immediately
due and payable and such amounts shall be payable at the termination date in
accordance with Section 2. All reasonable and documented expenses associated
with the movement (or duplication) of records and materials and conversion
thereof to a successor services agent, including all reasonable and documented
trailing expenses incurred by UMBDS shall be paid in accordance with Section
2.
UMBDS shall not reduce the level of service provided to the Trust prior to
termination following notice of termination by the Trust.
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(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 UMBDS and the Trust. UMBDS may from
time to time, in its discretion, appoint one or more other parties to carry
out
some or all of its responsibilities under this Agreement,
provided
however, that all fees and expenses incurred in any such appointment shall
be
paid by UMBDS unless otherwise agreed to by the parties and UMBDS shall remain
responsible to the Trust for the acts and omissions of such parties as if such
acts or omissions were acts or omissions of UMBDS.
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4.
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Non-Exclusivity;
Confidentiality
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(a) The
services of UMBDS hereunder are not deemed to be exclusive. UMBDS may render
inbound call management and fulfillment services and any other services to
others, including other investment companies.
(b) UMBDS
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, not to use such records and information for any purpose other
than
performance of its responsibilities and duties hereunder, and not to disclose
such information except where UMBDS may be exposed to civil or criminal
proceedings for failure to comply, when requested to divulge such information
by
duly constituted authorities or court process, when subject to governmental
or
regulatory audit or investigation, or when so requested by the Trust. In case
of
any requests or demands for inspection of the records of the Funds, UMBDS will
endeavor to notify the Trust promptly and to secure instructions from a
representative of the Trust as to such inspection. Records and information
which
have become known to the public through no wrongful act of UMBDS or any of
its
employees, agents or representatives, and information which was already in
the
possession of UMBDS prior to receipt thereof, shall not be subject to this
paragraph. Any party appointed pursuant to Section 3(c) above shall be required
to treat confidentially records of the Trust relative to the Funds’
shareholders.
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5.
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Limitation
of Liability
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(a) UMBDS
shall not be liable for any error of judgment or mistake of law or for any
loss
suffered by the Funds in connection with the matters to which this Agreement
relates, except for a loss resulting from UMBDS’ willful misfeasance, bad faith
or negligence in the performance of its duties or from reckless disregard by
it
of its obligations and duties under this Agreement. Furthermore, UMBDS shall
not
be liable for (i) any action taken or omitted to be taken in accordance with
or
in reliance upon written or oral instructions, advice, data, documents or
information (without investigation or verification) received by UMBDS from
an
officer or representative of the Trust or from a representative of any of the
parties referenced in Section 1 or (ii) any action taken or omission by a Fund,
the Trust, investment adviser(s) or any past or current service
provider.
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(b) The
Trust
agrees to indemnify and hold harmless UMBDS, its employees, agents, officers,
directors, members and affiliates (“UMBDS Indemnified Parties”) from and against
any and all claims, demands, actions and suits, and from and against any and
all
judgments, liabilities, losses, damages, costs, charges, reasonable counsel
fees
and other expenses of every nature and character which may be asserted against
or incurred by any UMBDS Indemnified Party or for which any UMBDS Indemnified
Party may be held liable (a “UMBDS Claim”) arising out of or in any way relating
to (i) UMBDS’ actions or omissions except to the extent a UMBDS Claim resulted
from the UMBDS’ willful misfeasance, bad faith, or negligence in the performance
of its duties hereunder or from reckless disregard by it of its obligations
and
duties hereunder; (ii) UMBDS’ reliance on, implementation of, or use of (without
investigation or verification) advice, instructions, requests, directions,
information, data, security valuations, records and documents received by UMBDS
from any party referenced in Section 1 hereof or other representative of the
Trust, (iii) any breach of any of the Trust’s obligations, representations or
warranties hereunder; or (iv) any action taken by or omission of the Trust,
investment adviser(s) or any other past or current service
provider.
(c) UMBDS
agrees to indemnify and hold harmless the Trust, its trustees, officers, agents
and affiliates (collectively the “Trust Indemnified Parties”), from and against
any and all claims, demands, costs, charges, reasonable counsel fees and other
expenses of every nature and character which may be asserted against or incurred
by a Trust Indemnified Party or for which any Trust Indemnified Party may be
held liable arising out of or in any way relating to UMBDS’ willful misfeasance,
bad faith or negligence in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement.
(d) Notwithstanding
anything herein to the contrary, UMBDS 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 or documents, errors,
delay or any other loss whatsoever caused thereby. UMBDS will, however, take
all
reasonable steps to minimize service interruptions for any period that such
interruption continues beyond its control. The indemnity provision set forth
in
this Section 5 shall indefinitely survive the termination and/or assignment
of
this Agreement.
(e) In
no
event and under no circumstances shall UMBDS, its affiliates or any of its
or
their officers, directors, agents or employees be liable to anyone, including,
without limitation, the other party, under any theory of tort, contract, strict
liability or other legal or equitable theory for lost profits, exemplary,
punitive, special, indirect or consequential damages for any act or failure
to
act under any provision of this Agreement regardless of whether such damages
were foreseeable and even if advised of the possibility thereof.
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6.
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Governing
Law; Invalidity
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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.
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7.
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Trust
Limitations
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This
Agreement is executed by the Trust with respect to each of the Funds and the
obligations hereunder are not binding on any of the trustees, officers or
shareholders of the Trust individually but are binding only upon the Fund to
which such obligations pertain and the assets and property of such Fund. All
obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund
basis, and the assts of one Fund shall not be liable for the obligations of
another Fund.
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8.
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Cooperation
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(a) Upon
reasonable request of the Trust, UMBDS shall grant the Trust’s duly authorized
officers (including the Trust’s Chief Compliance Officer), investment adviser,
agents and independent registered public accounting firm access, during normal
business hours, to UMBDS’ facilities, records and personnel to the extent such
facilities, records and personnel are used in connection with or relate to
UMBDS’ services to be provided hereunder, for the purposes of: (i) conducting a
due diligence review of UMBDS’ facilities, recordkeeping and personnel; (ii)
facilitating the preparation and audit, as applicable, of the Funds’ financial
statements; (iii) complying with any regulatory requirements applicable to
the
Trust; and (iv) conducting compliance review or audits in connection with the
Chief Compliance Officer’s, Trust’s and Board of Trustees’ obligations under
Rule 38a-1 under the 1940 Act.
(b) Upon
reasonable request, UMBDS will provide sub-certifications to the Trust and/or
its officers with respect to its services provided hereunder to support: (i)
the
Trust’s compliance program and (ii) the certifications required of the principal
executive officer and principal financial officer of the Trust under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and implementing rules and regulations.
(c) UMBDS
shall provide the Trust with a copy of the reports (if any) of UMBDS prepared
as
a result of “agreed-upon-procedures” or in compliance with the requirements of
Statement of Auditing Standards No. 70 issued by the American Institute of
Certified Public Accountants, as it may be amended from time to
time.
9. Miscellaneous
(a) The
800-telephone number that is transferred to UMBDS, in order for UMBDS to provide
the services hereunder, shall remain the property of the Trust. In the event
that this Agreement is terminated, UMBDS shall assert no claim in or to this
telephone number.
(b) This
Agreement and the Schedules incorporated hereto constitute the full and complete
understanding and agreement of UMBDS and the Trust in relation to the provision
of inbound call management and fulfillment services and supersedes all prior
negotiations, understandings and agreements.
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(c) To
the
extent required by Section 31 of the 1940 Act and the rules and regulations
thereunder, the records covered by this Agreement and maintained by UMBDS,
shall
be considered to be the property of the Trust, shall be made available upon
request for inspection by the officers, employees, and auditors of the Trust,
and shall be delivered to the Trust promptly upon request and in any event
upon
the date of termination of this Agreement, in the form and manner kept by UMBDS
on such date of termination or such earlier date as may be requested by the
Trust.
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10.
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Notices
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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 UMBDS shall be sent to UMB
Distribution Services, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, and notice to the Trust shall be sent to:
The
Westport Funds, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attention:
President.
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.
THE
WESTPORT FUNDS
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
UMB
DISTRIBUTION SERVICES, LLC
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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Schedule
A
to
the
by
and between
The
Westport Funds
and
UMB
Distribution Services, LLC
Name
of Funds
Westport
Fund
Westport
Select Cap Fund
7
Schedule
B
to
the
by
and between
The
Westport Funds
and
UMB
Distribution Services, LLC
SERVICES
Inbound
Call Management
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¨
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Standard
business hours: 7 a.m. - 7 p.m. CST, Monday through Friday (except
the
holidays on which the New York Stock Exchange is closed: New Year’s Day,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. Day, President’s Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day
)
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¨
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Qualify
callers
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¨
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Provide
detailed responses to inquiries (not
scripted)
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¨
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Automated
voice response system
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¨
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Custom
database maintenance
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¨
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Periodic
activity reporting:
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Ø
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Names,
addresses, telephone numbers and types of
inquiries
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Ø
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Call
tracking, by:
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à
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Fund
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à
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Zip
code or geographic region
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à
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Source
code
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¨
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Call
switching
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à
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Complex
calls can be forwarded to fund, if
desired
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à
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Transfer
calls to transfer agent
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Fulfillment
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¨
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Standard
business hours: Monday through Friday 8:00 - 5:00 CST (except the
holidays
on which the New York Stock Exchange is closed: New Year’s Day, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇. Day, President’s Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas
Day).
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¨
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Literature
requests fulfilled and mailed typically within 24 hours (but at most
within 3 business days with respect to all documents required by
the SEC
to be sent within such timeframes).
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¨
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On-site
inventory control
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¨
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Customized
investor kit assembly and literature
fulfillment
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¨
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Personalized
letters developed by UMBDS or the Funds’ distributor (if not UMBDS) with
prior approval by the distributor
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¨
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Fulfill
literature requests downloaded from the Trust’s Internet site through
UMBDS ▇.▇▇▇ Fulfillment service
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¨
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Conduct
follow-up mail campaign
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¨
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Fulfill
literature requests received via Reader Service
campaign
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¨
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Ability
to supply 3rd
party channels with fund literature
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¨
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Periodic
reporting
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¨
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Advanced
notice of need to order additional
materials
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¨
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Mailing
of premium items, such as T-shirts,
etc.
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Miscellaneous
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¨
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Fulfillment
Reference Manual maintenance
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¨
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Fulfillment
representative training
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The
duties of the UMBDS shall be confined to those expressly set forth herein,
and
no implied duties are assumed by or may be asserted against UMBDS hereunder.
These services do not include correcting, verifying or addressing any prior
actions or inactions by any Fund or by any prior service provider. To the extent
UMBDS agrees to take such actions, those actions taken shall be deemed part of
this service schedule.
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