EX-99.h.2
FUND SERVICES AGREEMENT
This agreement, dated November 17, 2023 (this “Agreement”),
is between the parties listed in Annex I (each individually, the “Customer”), and JPMORGAN CHASE BANK, N.A. (“▇.▇.
▇▇▇▇▇▇”) with a place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
| 1. | INTENTION OF THE PARTIES; DEFINITIONS |
| 1.1. | Intention of the Parties. |
| (a) | The Customer is an open-end management investment company registered under the Investment Company Act of 1940 (as amended), with the
purpose of investment of its assets in certain types of securities and instruments, as more fully described in the Customer’s Registration
Statement, as amended from time to time. |
| (b) | The Customer wishes to appoint ▇.▇. ▇▇▇▇▇▇ as its administrator to provide services to the Customer, as described hereinafter, for
the period and on the terms set forth in this Agreement. |
| (c) | ▇.▇. ▇▇▇▇▇▇ has agreed to provide such services to the Customer in accordance with this Agreement. ▇.▇. ▇▇▇▇▇▇ will be responsible
for the performance of only those duties expressly set forth in this Agreement. The terms and conditions of this Agreement are applicable
only to the services which are specified in this Agreement. |
| 1.2. | Definitions; Interpretation. |
As used herein, the following terms have
the meaning hereinafter stated:
“AML/Sanctions
Requirements” means (a) any Applicable Law (including but not limited to the rules and regulations of the United States
Office of Foreign Assets Control) applicable to ▇.▇. ▇▇▇▇▇▇, or to any ▇.▇. ▇▇▇▇▇▇ Affiliate engaged in servicing any Account, which governs
(i) money laundering, the financing of terrorism, insider dealing or other unlawful activities, or the use of financial institutions to
facilitate such activities or (ii) transactions involving individuals or institutions which have been prohibited by, or subject to, sanctions
of any governmental authority; and (b) any ▇.▇. ▇▇▇▇▇▇ policies and procedures reasonably designed to assure compliance with any such
Applicable Law.
“Applicable
Law” means, with respect to a party, any applicable statute, ordinance, treaty, rule, regulation or law (including common
law) and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or Governmental Authority.
“Authorized
Person” means any person who has been designated by written notice from the Customer (or by written notice as provided
by any agent designated by the Customer, including the Investment Adviser) to act on behalf of the Customer under this Agreement, and
any person who has been given an access code by a security administrator appointed by Customer which allows the provision of Instructions.
Such persons will continue to be Authorized Persons until such time as ▇.▇. ▇▇▇▇▇▇ receives and has had reasonable time to act upon, Instructions
from the Customer (or its agent) that any such person is no longer an Authorized Person.
“Confidential
Information” means all information regarding this Agreement, the Customer’s business including that of its Related
Bodies Corporate and Representatives, which ▇.▇. ▇▇▇▇▇▇ receives in the
course of providing services under this Agreement, Customer
Data, personal information, and any documents disclosed in connection with the Services or pursuant to the relationship between the parties
such as Customer’s financial models, processes, contracts, historical or projected financial information, organisational or operating
data, strategic or management plans, customer information or lists, and complaints, as well as all Intellectual Property Rights of the
Customer whether received before or after the date hereof. Nevertheless, the term Confidential Information does not include (i) information
that is or becomes available to the general public other than as a direct result of: (A) ▇.▇. ▇▇▇▇▇▇’▇ breach of the terms of this
Agreement, or (B) a breach of duty of confidence owed by an agent, subcontractor, or delegate appointed by ▇.▇. ▇▇▇▇▇▇, to ▇.▇. ▇▇▇▇▇▇,
(ii) information that ▇.▇. ▇▇▇▇▇▇ develops independently without using the Customer’s Confidential Information, (iii) information
which ▇.▇. ▇▇▇▇▇▇ obtains on a non-confidential basis from a person who is not known to be subject to any obligation of confidence to
the Customer with respect to that information, or (iv) information that the Customer has designated as non-confidential or consented be
disclosed.
“Customer Data” means (i) all
data and information (including, but not limited to, any personal information) submitted by the Customer Group, its Authorized
Persons, or service providers to ▇.▇. ▇▇▇▇▇▇ by or on behalf of the Customer or any member of Customer Group in any way connected
with the Services being provided under this Agreement; (ii) all data or information otherwise received by ▇.▇. ▇▇▇▇▇▇, directly or
indirectly, concerning the Customer Group or its Authorized Persons in any way connected with the Services being provided under this
Agreement (iii) all electronic data, copies, derivatives, compilations or metadata (where the metadata in whole or in part
identifies, or directly relates to, the Customer, Customer Group or its Authorized Persons) in respect of the Customer Data pursuant
to paragraphs (i) and (ii) above. “Metadata” for the above purposes excludes metadata of ▇.▇. ▇▇▇▇▇▇ that applies to
▇.▇. ▇▇▇▇▇▇’▇ customers generally and does not identify in whole or in part, or directly relate to, the Customer, Customer
Group or its Authorized Persons.
“Customer Group” means Customer and its
Related Bodies Corporate.
“Data” is defined in Annex III and includes
Specialist Agency Data.
“Dependencies”
has the meaning set forth in Section 2.1(e).
“ETF
Agency Services Agreement” means the agreement between the Customer on behalf of its series and ▇.▇. ▇▇▇▇▇▇, dated November
17, 2023 related to certain exchange-traded fund agency services.
“Governing
Documents” means, as applicable, the certificate of incorporation, bylaws, memorandum of association and articles of
association, certificate of formation, limited partnership agreement, limited liability company agreement, investment management agreement
or other governing documents of the Customer, as amended from time to time.
“Governmental
Authority” means any government or any agency, bureau, board, commission, department regulatory authority, ministry, official,
political subdivision, taxing authority, revenue authority, tribunal, self-regulatory organisation, or other instrumentality of any government
having authority in the United States or any other nation, whether federal, state, provincial or local.
“Initial Term” has the meaning given to
it in Section 7.1.
“Instruction”
means an instruction that has been verified in accordance with a Security Procedure or, if no Security Procedure is applicable,
which ▇.▇. ▇▇▇▇▇▇ believes in good faith to have been given by an Authorized Person.
“Intellectual
Property Rights” means all intellectual property rights in the United States and throughout the world, as at or after
the date of this Agreement, including but not limited to:
| (i) | patents, copyright, rights in circuit layouts, registered designs, trade or service marks, trade, business or company names, indication
of source or appellation of origin, and any right to have confidential information kept confidential; |
| (ii) | any application or right to apply for registration of, or assert or waive, any of the rights referred to in paragraph (a); and |
| (iii) | trade secrets, ideas, concepts, materials, know-how and techniques. |
“Investment
Adviser” means any person or entity appointed as investment adviser, investment manager, general partner, or managing
member of the Customer, or in a similar capacity, in accordance with the Governing Documents.
“▇.▇.
▇▇▇▇▇▇ Affiliate” means an entity controlling, controlled by, or under common control with, ▇.▇. ▇▇▇▇▇▇.
“Liabilities”
means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, taxes (other than taxes based solely
on a party’s own income) or expenses of any kind whatsoever (whether actual or contingent and including, without limitation, attorneys’,
accountants’, consultants’ and experts’ fees and disbursements reasonably incurred) and outstanding from time to time.
“Offering
Documents” means, as applicable the Registration Statement, prospectus, offering memorandum, statement of additional
information, and any other offering documentation of the Customer as supplemented, updated or amended from time to time.
“Products”
has the meaning given to it in Annex III.
“Related
Body Corporate” means, in respect of a person or entity, any person or entity controlling, controlled by or under common
control with that person or entity.
“Registration
Statement” means the registration statement on Form N-1A of the Customer, filed under the Securities Act of 1933 (as
amended) and the Investment Company Act of 1940 (as amended), as amended or supplemented from time to time.
“Reports”
means the reports issued by ▇.▇. ▇▇▇▇▇▇ in connection with the provision of the Services.
“Representative”
means a director, officer, employee, agent, subcontractor, or delegate of a Party or its Related Bodies Corporate.
“Security
Procedure” means the applicable security procedure to be followed by the Customer (and its Authorized Persons) and/or
by ▇.▇. ▇▇▇▇▇▇, so as to enable ▇.▇. ▇▇▇▇▇▇ to verify that such Instruction is authorized. The applicable Security Procedure for different
types of Instructions may be set forth in the service level documentation in effect from time to time with respect to the Services set
forth in this Agreement or in separate documentation, and may be updated by ▇.▇. ▇▇▇▇▇▇ from time to time upon notice to the Customer,
such notice to be provided on reasonable advance notice except where such advance notice is not reasonably practicable (in which case
▇.▇. ▇▇▇▇▇▇ must do so promptly after the change). A Security Procedure may, without limitation, involve the use of User Codes, dual-factor
authentication or telephone call backs, or third party utilities. For the avoidance of doubt, an authenticated SWIFT message issued in
the name of the Customer through any third party utility that ▇.▇. ▇▇▇▇▇▇ has approved as a utility through which Instructions may be
provided hereunder, shall be deemed to have been verified through a Security Procedure.
“Services”
means the services and Reports provided to each Customer as described in Schedule 1 to this Agreement (as amended, supplemented
or modified from time to time), and as may be modified with respect to any particular Customer in Annex I.
“Services
Commencement Date” means the date agreed by the parties.
“Specialist
Agency” means any person (including, where data is provided by ▇.▇. ▇▇▇▇▇▇, an Affiliate of ▇.▇. ▇▇▇▇▇▇) who provides
software, information or the means of obtaining information on security prices, derivative prices, foreign exchange, credit ratings, performance
measurement or any other information obtained by ▇.▇. ▇▇▇▇▇▇ or the Customer (as relevant) in connection with the services provided under
this Agreement (including, index return providers, security characteristics providers, and Value-at-Risk providers).
“Specialist
Agency Data” is defined in Section 5.3.
“Shares”
means the securities (as defined in the Securities Act of 1933 (as amended)) issued by the Customer.
“Trading Decisions”
has the meaning given to it in Section 2.1(c).
“User Code” means a password
digital certificate, identifier, security device, algorithm, encryption or other similar procedure used by the Customer or an Authorized
Person to access ▇.▇. ▇▇▇▇▇▇’▇ systems, applications or Products or to issue Instructions to ▇.▇. ▇▇▇▇▇▇.
“Website
Portal” means the ▇.▇. ▇▇▇▇▇▇ Markets portal made available at ▇▇▇.▇▇▇▇.▇▇▇ to the Customer or such other web-interface
made available and notified to the Customer in writing in respect of the Services.
| (i) | Headings are for reference and convenience only and are not intended to affect interpretation. |
| (ii) | References to Sections are to Sections of this Agreement and references to paragraphs are to paragraphs of the Sections in which they
appear. |
| (iii) | Unless the context requires otherwise, references in this Agreement to “persons” shall include
legal as well as natural entities; references importing the singular include the plural (and vice versa); use of the generic masculine
pronoun shall include the feminine. |
| (iv) | Unless the context requires otherwise, a reference to this Agreement includes each Schedule, Appendix and Annex to this Agreement
and references to numbered sections shall be to sections in the Agreement, Schedule and Appendices. |
| (v) | Use of the term “including” or similar expression shall be deemed to mean “including but not limited to” |
| (vi) | Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included. |
| (vii) | For the purposes of this Agreement, a reference to an agent, delegate or subcontractor of ▇.▇. ▇▇▇▇▇▇ means such agent, delegate or
subcontractor that ▇.▇. ▇▇▇▇▇▇ appoints to provide Services that ▇.▇. ▇▇▇▇▇▇ is required to provide to the Customer under this Agreement
and for the avoidance of doubt excludes Specialist Agencies. |
| (viii) | Unless the context requires otherwise, any reference to a statute or a statutory provision shall include such statute or provision
as from time to time modified to the extent such modification applies to any service provided hereunder. Any reference to a statute or
a statutory provision shall also include any subordinate legislation made from time to time under that statute or provision. |
| 2. | WHAT ▇.▇. ▇▇▇▇▇▇ IS REQUIRED TO DO |
| (a) | The Customer appoints ▇.▇. ▇▇▇▇▇▇ to provide, and ▇.▇. ▇▇▇▇▇▇ agrees to provide, the Services to the Customer in accordance with and
subject to the terms of this Agreement. |
| (b) | In providing the Services under this Agreement, including compiling and producing Reports and providing those Reports to the Customer,
▇.▇. ▇▇▇▇▇▇ is performing an administrative function for the Customer and is acting solely as agent for the Customer and not as a fiduciary
for the Customer, the Investment Adviser or any other third party with respect to the Services under this Agreement, even if ▇.▇. ▇▇▇▇▇▇
or a ▇.▇. ▇▇▇▇▇▇ Affiliate separately acts in a fiduciary capacity with respect to the Customer. The Customer is responsible for determining
that the Services are appropriate for the Customer’s use. |
| (c) | In providing the Services under this Agreement, ▇.▇. ▇▇▇▇▇▇ has no duty to undertake any other service for the Customer (except as
expressly set out in the Services). The Customer acknowledges that ▇.▇. ▇▇▇▇▇▇ is not making any recommendation or providing any legal,
tax or investment advice in providing the Services. The Customer agrees that the provision of Reports by ▇.▇. ▇▇▇▇▇▇ will not be taken
in any way to constitute advice from ▇.▇. ▇▇▇▇▇▇ as to any matter including decisions in relation to buying, selling or holding any investment,
emulation, rebalancing, asset allocation, hedging, treasury or risk management, or any other trading or investment decision (collectively,
“Trading Decisions”), which transactions to enter into or which investment manager to engage or remove. |
| (d) | The Customer acknowledges and agrees (i) that ▇.▇. ▇▇▇▇▇▇ will make use of various calculation methodologies and assumptions in performing
the Services and preparing the Reports, (ii) that it has had an opportunity to make inquiries regarding such methodologies and assumptions,
(iii) to ▇.▇. ▇▇▇▇▇▇’▇ use of such methodologies and assumptions in preparing the Reports and performing the Services, whether or
not the Customer availed itself of the opportunity to make inquiries, and (iv) that ▇.▇. ▇▇▇▇▇▇ may rely on such methodologies and assumptions
for the valuation of holdings, and that any such valuation is an indicative value and does not indicate the actual terms on which the
holding could be liquidated. |
| (e) | The Customer agrees that ▇.▇. ▇▇▇▇▇▇’▇ ability to provide the
Services and comply with the terms of this Agreement is dependent upon the performance of
actions or obligations by the Customer or the Investment Adviser, or by any person (other
than ▇.▇. ▇▇▇▇▇▇) (the “Dependencies”). In any period during which the
Dependencies are not met, the parties will cooperate to ensure that such period is kept as
short as reasonably possible and ▇.▇. ▇▇▇▇▇▇ will use commercially reasonable efforts to
provide the Services, provided that ▇.▇. ▇▇▇▇▇▇ shall not be obliged to incur additional
costs to do so. The Dependencies are as follows: |
| (i) | the Customer or the Investment Adviser performing any responsibility set forth in any service-level document or any other documents
agreed to between the parties from time to time; |
| (ii) | the Customer, the Investment Adviser and other service providers of the Customer or the Investment Adviser whose cooperation is reasonably
required in order for ▇.▇. ▇▇▇▇▇▇ to provide the Services, providing such cooperation, information, documentation, data, notice and |
Instructions to ▇.▇. ▇▇▇▇▇▇ promptly, accurately, adequately
and completely and in accordance with any agreed formats or timelines to allow ▇.▇. ▇▇▇▇▇▇ to provide the Services;
| (iii) | any information provided to ▇.▇. ▇▇▇▇▇▇ by or on behalf of the Customer or the Investment Adviser, or which was prepared or maintained
by the Customer or Investment Adviser, or any third party (other than a sub-contractor of ▇.▇. ▇▇▇▇▇▇) on their behalf, being authorized,
accurate and complete; |
| (iv) | the continuation in force of all agreements between the Customer or the Investment Adviser, as applicable, and any third party provider,
upon which ▇.▇. ▇▇▇▇▇▇ relies in providing the Services and which are not being provided by a ▇.▇. ▇▇▇▇▇▇ Affiliate; |
| (v) | any warranty, representation, covenant or undertaking made by the Customer under this Agreement being and remaining true and correct
at all times; |
| (vi) | communications systems in respect of activities which interface with the Services being and remaining fully operational (whether such
systems are operated by the Customer, the Investment Adviser or a third party (as instructed by the Customer or the Investment Adviser)); |
| (vii) | markets on which the Customer’s securities or derivatives are traded are operating normally, and no cessation or suspension of trading
of any securities or derivatives held by the Customer on any market; |
| (viii) | any information provided to ▇.▇. ▇▇▇▇▇▇ by any Specialist Agent being accurate and complete; and |
| (ix) | any data that is transitioned to ▇.▇. ▇▇▇▇▇▇ prior to the time it begins to provide the Services being accurate and complete. |
| 2.2. | No Duty to Monitor Compliance. |
The Customer acknowledges that the duty of ▇.▇. ▇▇▇▇▇▇ in its
capacity as the provider of any of the Services:
| (i) | is not a duty to monitor the compliance of the Customer or its delegates (including any Investment Adviser) or any other person with
any restriction or guideline imposed on the Customer or the Investment Adviser by the Governing Documents, Offering Documents, or any
other document, or by Applicable Law (other than as specifically set out in this Agreement); |
| (ii) | does not extend to enforcing compliance of the Customer, the Investment Adviser or their delegates or any other person with any such
restrictions or guidelines; and |
| (iii) | except as expressly set out in the Services, does not extend to taking any action on behalf of the Customer as a consequence of preparing
the Reports and providing them to the Customer. |
| 2.3. | No Responsibility for Tax Returns. |
▇.▇. ▇▇▇▇▇▇ is not responsible for filing any tax reports or
returns on behalf of the Customer. The tax services provided by ▇.▇. ▇▇▇▇▇▇ shall be limited to those tax services expressly listed in
Schedule 1 (Scope of Services) (“Tax Services”). ▇.▇. ▇▇▇▇▇▇ is authorized to provide some or all of the Tax Services through
use of a third-party vendor and Customer agrees that any claims in connection with the Tax Services shall be asserted against ▇.▇. ▇▇▇▇▇▇
(subject to the terms of this Agreement) and not the third-party vendor. Customer hereby waives its right to assert a claim or commence
proceedings against ▇.▇. ▇▇▇▇▇▇’▇ tax service provider in connection with the Tax Services and acknowledges that ▇.▇. ▇▇▇▇▇▇’▇
tax service provider accepts no responsibility or liability to Customer in connection with the Tax Services.
| 2.4. | Access to ▇.▇. ▇▇▇▇▇▇’▇ Records. |
| (a) | ▇.▇. ▇▇▇▇▇▇ shall maintain, and shall procure that its subcontractors, delegates and agents maintain, such records and documents as
are required by Applicable Law applicable to ▇.▇. ▇▇▇▇▇▇ and such subcontractors, delegates and agents in the provision of the Services.
▇.▇. ▇▇▇▇▇▇ is authorized to maintain such records and documents on magnetic tape or disc, or on any other mechanical or electronic system;
provided that they are capable of being reproduced in legible form in accordance with Applicable Laws applicable to ▇.▇. ▇▇▇▇▇▇ as a service
provider under this Agreement. |
| (b) | ▇.▇. ▇▇▇▇▇▇ will, upon reasonable written notice, allow the Customer and the Investment Adviser (and/or the Customer’s auditors
and independent public accountants if required for their examination of books and records pertaining to the Customer’s affairs) reasonable
access to the records of ▇.▇. ▇▇▇▇▇▇ relating to the Customer. |
| (c) | The Customer shall reimburse ▇.▇. ▇▇▇▇▇▇ for the reasonable cost of copying, collating and researching archived information. |
| 2.5. | Compliance with Laws and Regulations. |
| (a) | ▇.▇. ▇▇▇▇▇▇ will, in the performance of the Services, comply with Applicable Law that applies to ▇.▇. ▇▇▇▇▇▇ in its provision of the
Services. The Customer shall comply with Applicable Law in the United States and in each jurisdiction that the Customer conducts business
or offers Shares, to the extent that compliance with such Applicable Law is relevant to the provision or receipt of the Services or the
marketing of the Customer. |
| (b) | ▇.▇. ▇▇▇▇▇▇ is not responsible and shall not be liable for any Liabilities incurred or suffered by any person, whether on their own
account or for the account of the Customer, as a result of the failure of the Customer, its Authorized Persons, the Investment Adviser
or any other third party to comply with the Applicable Laws of any country or jurisdiction in which Shares are offered. |
| (a) | If either party wishes to propose any amendment or modification to, or variation of, the Services (including the scope or details
of the Services) (a “Change”)
then it shall notify the other party of that fact by sending a request (a “Change
Request”) to the other party, specifying in as much detail as is reasonably practicable the nature of the Change. ▇.▇.
▇▇▇▇▇▇ shall maintain a log of all Change Requests. |
| (b) | Promptly following the receipt of a Change Request, the parties shall agree whether to implement the Change Request, whether the fees
should be modified in light of the change to the Services, and the basis upon which ▇.▇. ▇▇▇▇▇▇ will be compensated for implementing the
Change Request. |
| (c) | If a change to Applicable Law requires a change to the provision of Services, the parties shall follow the processes set forth in
this Section to initiate a Change Request. If the change in Applicable Law results in a Change or an increase in ▇.▇. ▇▇▇▇▇▇’▇ costs
or risk associated with provision of its services contemplated by this Agreement, ▇.▇. ▇▇▇▇▇▇ shall be entitled to an appropriate increase
in the fees contemplated by Section 4.1 with the amount of such increase to be agreed in writing between the parties. ▇.▇. ▇▇▇▇▇▇ shall
bear its own costs with respect to implementing such a Change Request based upon a change in Applicable Law, except that: |
| (i) | ▇.▇. ▇▇▇▇▇▇ shall be entitled to charge the Customer reasonable expenses for any Changes to software that
has been developed or customized soley for the Customer, with such changes to be agreed in writing between the parties; and |
| (ii) | ▇.▇. ▇▇▇▇▇▇ shall be entitled to charge the Customer reasonable expenses for any Changes required as a
result of the change in Applicable Law affecting the Customer in a materially different way than it affects ▇.▇. ▇▇▇▇▇▇’▇ other
customers, or which the Customer wishes ▇.▇. ▇▇▇▇▇▇ to implement in a way different from how ▇.▇. ▇▇▇▇▇▇ reasonably intends to implement
for its other customers, with such charges to be agreed in writing between the parties. |
| (d) | If the parties agree to implement a Change, the parties shall agree in writing and/or document in an amendment to this Agreement (if
appropriate), without unreasonable delay, such agreed Change including any applicable fees and changes to the scope of the Services, service
levels or any other terms of this Agreement. |
| (e) | The parties agree that subject to the terms of this Agreement (including for the avoidance of doubt this Section 2.6) additional entities
may become party to this Agreement by signing a joinder to this Agreement in the form set forth in Annex II. |
▇.▇. ▇▇▇▇▇▇’▇ responsibilities with respect to the correction
of an error in calculating the net asset value of the Customer shall be subject to the NAV error correction policy and procedures attached
to this Agreement as Appendix A to Schedule 1of this Agreement.
| 3.1. | Acting on Instructions; Unclear Instructions. |
| (a) | The Customer authorizes ▇.▇. ▇▇▇▇▇▇ to accept and act upon any Instructions received by it without inquiry, subject to those inquiries
specified in the definition of “Instruction” in Section 1.2 of this Agreement, and ▇.▇. ▇▇▇▇▇▇ will act upon any Instructions
of the Customer in accordance with this Agreement. The Customer is solely responsible for the accuracy and completeness of Instructions,
their proper delivery to ▇.▇. ▇▇▇▇▇▇, for updating Instructions as may be necessary to ensure their continued accuracy and completeness,
and for monitoring their status. ▇.▇. ▇▇▇▇▇▇ will not be responsible for any Liabilities resulting from the Customer’s failure to
perform these responsibilities. The Customer will indemnify ▇.▇. ▇▇▇▇▇▇ in accordance with Section 6.1(c) for Liabilities ▇.▇. ▇▇▇▇▇▇
incurs as a result of any action or omission taken by ▇.▇. ▇▇▇▇▇▇ in accordance with any Instruction, subject to the limitations in that
Section. |
| (b) | To the extent possible, Instructions to ▇.▇. ▇▇▇▇▇▇ shall be sent via an encrypted, electronic means using technology consistent with
industry standards, or a trade information system acceptable to ▇.▇. ▇▇▇▇▇▇. |
| (c) | ▇.▇. ▇▇▇▇▇▇ shall promptly notify the Customer if ▇.▇. ▇▇▇▇▇▇ determines that an Instruction does not contain all information reasonably
necessary for ▇.▇. ▇▇▇▇▇▇ to carry out the Instruction and shall promptly seek to clarify the Instruction with the Customer. ▇.▇. ▇▇▇▇▇▇
may decline to act upon an Instruction if it does not receive missing information, clarification or confirmation satisfactory to it (acting
reasonably) and will promptly notify the Customer if it is declining to act upon an Instruction. Subject to ▇.▇. ▇▇▇▇▇▇ acting in accordance
with its standard of care in Section 6.1(a), ▇.▇. ▇▇▇▇▇▇ will not be liable for any Liabilities arising from any reasonable delay in carrying
out any such Instruction while it seeks any such missing information, clarification or confirmation or in declining to act upon any Instruction
for which it does not receive such missing information, clarification or confirmation satisfactory to it (acting reasonably). |
| 3.2. | Verification and Security Procedures. |
| (a) | ▇.▇. ▇▇▇▇▇▇ and the Customer shall comply with any applicable Security Procedures to permit ▇.▇. ▇▇▇▇▇▇ to verify the authenticity
of Instructions. |
| (b) | The Customer acknowledges that the Security Procedure is designed to verify the authenticity of, and not to detect errors in, Instructions.
The Customer shall promptly notify ▇.▇. ▇▇▇▇▇▇ if it does not believe that any relevant Security Procedure is commercially reasonable,
and its adherence to any Security Procedure without objection constitutes its agreement that it has determined the Security Procedure
to be commercially reasonable. |
| (c) | The Customer and its Authorized Persons are solely responsible for
ensuring that the User Codes are reasonably safeguarded and known to and used by only the
respective Authorized Persons to whom such User Codes apply. If (i) the User Codes are (or
the Customer or its relevant Authorized Person reasonably suspects that the User Codes may
be) lost, stolen, damaged, altered, unduly disclosed, known
in a manner inconsistent with its purposes or compromised, (ii) the Customer’s or any
Authorized Persons’
access to ▇.▇. ▇▇▇▇▇▇’▇ systems, applications or Products, or any third party
messaging platform through which the Instructions are transmitted, is revoked or suspended,
or (iii) the Customer or an Authorized Person reasonably suspects any technical or security
failure relating to any systems, applications or Products of ▇.▇. ▇▇▇▇▇▇ or any third party
messaging platform through which the Instructions are transmitted, the Customer shall immediately
cease using such system, application, product or platform and promptly notify ▇.▇. ▇▇▇▇▇▇. |
| 3.3. | Instructions Contrary to Applicable Law/Market Practice. |
▇.▇. ▇▇▇▇▇▇ need not act upon Instructions which it reasonably
believes to be contrary to Applicable Law, the Governing Documents, the Offering Documents or market practice and will not be responsible
for any Liabilities resulting from not acting upon such Instruction. ▇.▇. ▇▇▇▇▇▇ shall be under no duty to investigate whether any Instructions
comply with Applicable Law, the Governing Documents, the Offering Documents or market practice. In the event that ▇.▇. ▇▇▇▇▇▇ does not
act upon such Instructions, it will promptly notify the Customer except where prohibited by Applicable Law.
| (a) | ▇.▇. ▇▇▇▇▇▇ has established cut-off times for receipt of Instructions
(excluding those referred to in Section 3.4(d)), which will be made available to the Customer
by
written notice (“Cut-off Times”). |
| (b) | If ▇.▇. ▇▇▇▇▇▇ receives an Instruction after the relevant Cut-off Time, ▇.▇. ▇▇▇▇▇▇ will use reasonable endeavors to act upon the
Instruction on the day requested only if ▇.▇. ▇▇▇▇▇▇ deems it practicable to do so and, failing that, will (as applicable) review, process
and act upon the Instruction as soon as practicable on the business day following the day on which the Instruction was received. |
| (c) | ▇.▇. ▇▇▇▇▇▇ may, acting in good faith and reasonably, revise the Cut-off Times in its discretion and will promptly provide the Customer
written notice of the new Cut-off Times as soon as is reasonably practicable. |
| 3.5. | Electronic Access and Cybersecurity. |
| (a) | Access by the Customer to certain systems, applications or Products of ▇.▇. ▇▇▇▇▇▇ shall be governed by this Agreement and the terms
and conditions set forth in Annex III Electronic Access. |
| (b) | The
Customer and its Authorized Persons shall use User Codes to access ▇.▇. ▇▇▇▇▇▇’▇ systems, applications or Products unless
otherwise agreed by ▇.▇. ▇▇▇▇▇▇. |
| (c) | Each of the Customer and ▇.▇. ▇▇▇▇▇▇ will maintain written cybersecurity policies and procedures which implement commercially reasonable
administrative, technical, and physical safeguards that are aligned with industry security standards and that, among other things, protect
against anticipated threats or hazards to the security or integrity of their respective systems and data. ▇.▇. ▇▇▇▇▇▇ may |
in its discretion provide training or information on best
practices to the Customer from time to time but in so doing it will not be considered a consultant or advisor with respect to cybersecurity.
| (d) | Each of the Customer and ▇.▇. ▇▇▇▇▇▇ will be responsible for the obtaining, proper functioning, maintenance and security of its own
services, software, connectivity and other equipment. |
| 3.6. | Recording of Telephone Communications. |
Subject to Applicable Laws, either party may record any of
their telephone communications.
| 4. | FEES AND EXPENSES OWING TO ▇.▇. ▇▇▇▇▇▇ |
| (a) | The Customer will pay ▇.▇. ▇▇▇▇▇▇ for the Services such fees as may be agreed upon by the parties in writing from time to time, together
with ▇.▇. ▇▇▇▇▇▇’▇ reasonable out-of-pocket expenses or incidental expenses, including, market data charges, pricing vendors charges,
and costs incurred by ▇.▇. ▇▇▇▇▇▇ in determining the value of assets. In addition to the fees provided for above, the Customer shall be
responsible for the payment of all governmental or similar fees, charges, taxes, duties and imposts levied in or by any relevant authority
in the United States on or in respect of the Customer which are incurred by ▇.▇. ▇▇▇▇▇▇. |
| (b) | Invoices will be payable within thirty (30) days of the date the invoice is received by the Customer, and ▇.▇. ▇▇▇▇▇▇ will present
invoices for fees to the Customer monthly in arrears. If the Customer disputes an invoice, it shall nevertheless pay, on or before the
date that payment is due, such portion of the invoice that is not subject to a bona fide dispute. |
| (c) | If ▇.▇. ▇▇▇▇▇▇ or any other ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is required by governmental regulation, summons, subpoena or other legal process
to produce its documents, or to produce its personnel as witnesses, with respect to any Services provided under this Agreement, the Customer
will, so long as such ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is not the subject of the investigation or proceeding in which the information or testimony
is sought, reimburse such ▇.▇. ▇▇▇▇▇▇ Indemnitee for its professional time and expenses (including counsel fees) incurred in responding
to such requests. Nothing in this Section shall be deemed to limit in any manner the indemnification rights of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
provided in this Agreement. |
| (d) | If Customer requests that ▇.▇. ▇▇▇▇▇▇ repeat its performance of any of the Services, other than as a result of an error by ▇.▇. ▇▇▇▇▇▇,
then Customer shall compensate ▇.▇. ▇▇▇▇▇▇ at the customary hourly rates for the performance of such Service. |
| (e) | Customer shall compensate ▇.▇. ▇▇▇▇▇▇ at its customary hourly rates, for any additional work required to re-process any incorrect
or incomplete information, or for remediation efforts needed to correct any error in information, transitioned to it from or at the direction
of the Customer, the Investment Adviser or a prior administrator. |
| (f) | All fees payable under this Agreement are exclusive of any tax (including but not limited to withholding, value-added, sales, business,
stamp duty or other similar taxes and charges) and shall be paid free of withholding or any deductions. |
| 5.1. | Representations of the Customer and ▇.▇. ▇▇▇▇▇▇. |
| (a) | The Customer represents, warrants and covenants that (i) assuming execution and delivery of this Agreement by ▇.▇. ▇▇▇▇▇▇, this Agreement
is the Customer’s legal, valid and binding obligation, enforceable against the Customer in accordance with its terms, (ii) it has
full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement, (iii)
there is no material administrative, civil or criminal proceeding pending or, to the knowledge of the Customer, threatened against the
Customer or the Investment Adviser, (iv) it has not relied on any oral or written representation made by ▇.▇. ▇▇▇▇▇▇ or any person on
its behalf other than the ▇.▇. ▇▇▇▇▇▇ representations explicitly set forth in this Agreement, and acknowledges that this Agreement sets
out to the fullest extent the duties of ▇.▇. ▇▇▇▇▇▇, and (v) no Instruction by the Customer or its Authorized Persons will contravene
Applicable Law. ▇.▇. ▇▇▇▇▇▇ may rely upon the representations or certification of such other facts as may be required to administer ▇.▇.
▇▇▇▇▇▇’▇ obligations under this Agreement and the Customer shall indemnify ▇.▇. ▇▇▇▇▇▇ against all Liabilities arising directly
or indirectly from any such certifications. |
| (b) | ▇.▇. ▇▇▇▇▇▇ represents and warrants that (i) assuming execution and delivery of this Agreement by the Customer, this Agreement is
▇.▇. ▇▇▇▇▇▇’▇ legal, valid and binding obligation, enforceable against ▇.▇. ▇▇▇▇▇▇ in accordance with its terms and (ii) it has
full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement. |
| (c) | ▇.▇. ▇▇▇▇▇▇ represents and warrants that it has, and will have at all times during the term of this Agreement: |
| (i) | the capacity through technology, systems, processes, access to information (including specialist legal tax and accounting information)
and other resources necessary to perform its duties and obligations under this Agreement; |
| (ii) | sufficient competent staff having the experience, qualifications, knowledge, skills and resources necessary to properly perform their
duties and the Services provided for in this Agreement and will have charge at all times of the conduct of, and will maintain close supervision
of, that staff in the performance of their duties in delivering those Services under this Agreement; |
| (iii) | the power and financial ability to enter into and perform its obligations under this Agreement; |
| (iv) | such licences and authorities as are necessary to lawfully perform its obligations under this Agreement; and |
| (v) | information barriers, training and technological controls in place for preventing investment professionals in ▇.▇. ▇▇▇▇▇▇’▇
asset management business from having access to the Confidential Information. |
| (d) | ▇.▇. ▇▇▇▇▇▇ also represents and warrants that in respect of the provision of services under this Agreement it shall establish and
maintain security measures consistent with the standard of care in Section 6.1 which shall include, without limitation, utilising malware
protection mechanisms that are designed to detect and/or prevent against malware threats, including preventing the introduction of any
malware into any Customer equipment, systems or software, or those used by Customer, as a result of the Customer’s use of the Products
and Services. |
| 5.2. | The Customer to Provide Certain Information to ▇.▇. ▇▇▇▇▇▇. |
| (a) | Upon
request, the Customer will promptly provide to ▇.▇. ▇▇▇▇▇▇ such information about itself
and its financial status as ▇.▇. ▇▇▇▇▇▇ may reasonably request, including the Customer’s
organizational documents and its current publicly available audited financial statements,
and any contracts or regulatory documents that are necessary for the proper performance of
the Services described in this Agreement.
Upon ▇.▇. ▇▇▇▇▇▇’▇ request, the Customer shall provide to ▇.▇. ▇▇▇▇▇▇ such similar
information concerning any person other than the Customer as reasonably required by
▇.▇. ▇▇▇▇▇▇ for the proper performance of Services under this Agreement. For the avoidance
of doubt, the Customer is under no obligation under this Section to provide to ▇.▇. ▇▇▇▇▇▇
any information to the extent it is subject to confidentiality obligations owed to a third
party, subject to legal professional privilege
or is otherwise, in the Customer’s opinion, commercially sensitive. |
| (b) | ▇.▇. ▇▇▇▇▇▇ shall be entitled to rely on information provided by the Customer, the Investment Adviser and other service providers
of the Customer or the Investment Adviser, and shall not be required to independently review or validate such information. |
| 5.3. | U.S. Regulatory Disclosure; Certain Information of the Customer. |
| (a) | Section 326 of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires ▇.▇. ▇▇▇▇▇▇
to implement reasonable procedures to verify the identity of any person that opens
a new account with it. Accordingly, the Customer acknowledges that Section 326 of the USA
PATRIOT Act and ▇.▇. ▇▇▇▇▇▇’▇
identity verification procedures require ▇.▇. ▇▇▇▇▇▇ to obtain information which may be used
to confirm the Customer’s
identity, including, without limitation, the Customer’s name, address and organizational
documents (“Identifying Information”). The Customer agrees to provide
▇.▇. ▇▇▇▇▇▇ with and consents to ▇.▇. ▇▇▇▇▇▇ obtaining from third parties any such
Identifying Information required as a condition of opening an account with or using any service
provided by ▇.▇. ▇▇▇▇▇▇. |
The Customer hereby acknowledges that ▇.▇. ▇▇▇▇▇▇
is obliged to comply with AML/Sanctions Requirements and that ▇.▇. ▇▇▇▇▇▇ shall not be liable for any action it or any ▇.▇. ▇▇▇▇▇▇ Affiliate
reasonably takes to comply with any AML/Sanctions Requirements, including identifying and reporting suspicious transactions, rejecting
transactions, and blocking or freezing funds, financial assets, or other assets. The
Customer shall cooperate with ▇.▇. ▇▇▇▇▇▇’▇ performance of its due diligence and other obligations concerning AML/Sanctions
Requirements. In addition, the Customer agrees that ▇.▇. ▇▇▇▇▇▇ may defer acting upon an Instruction pending completion of any review
under its policies and procedures for compliance with AML/Sanctions Requirements, and that ▇.▇. ▇▇▇▇▇▇ shall not be responsible for any
Liabilities resulting from or relating to such deferral.
| | 5.4 | Redistribution of Data from Third Parties. |
| (a) | Except
as provided in this Section 5.4, a party (recipient) shall not distribute any data (such
as entire index databases of historical returns or security level data) from a Specialist
Agency provided by the other party (discloser) to the recipient (“Specialist
Agency Data”) and subject to this Section 5.4, the recipient will hold all Specialist
Agency Data in confidence and will not disclose any Specialist Agency Data except as may
be required by Applicable Law, a Governmental Authority with jurisdiction over the recipient’s
business, or with the prior written consent of the discloser. The discloser authorizes the
recipient to disclose the Specialist Agency Data to its employees, directors, general partner,
or manager, as applicable, its professional advisors, auditors or public accountants, its
Related
Bodies Corporate, and any revenue authority or any Governmental Authority provided
that, the recipient shall,
and shall procure that any person to whom it distributes the Specialist Agency Data, only
use the Specialist Agency Data: (i) in connection with the Services contemplated under this
Agreement; or (ii) as otherwise set out in any service level documentation. |
| (b) | The Reports may contain data licensed from third party suppliers (or may be derived based on such data), such as Specialist Agency
Data. This Specialist Agency Data is the intellectual property of |
those vendors and is subject to use rights and restrictions
contained in this Agreement, or as otherwise advised in writing to the recipient, which the discloser cannot unilaterally change. The
discloser will advise the recipient, in writing, of such relevant and additional applicable restrictions in advance of providing Specialist
Agency Data to the recipient. If the third party supplier adds restrictions to the use of the Specialist Agency Data, the discloser shall
notify the recipient of relevant and applicable changes in writing promptly after itself becoming aware of any such change or addition
including the applicable timing of any such change or addition.
| (c) | Where the recipient is the Customer, the Customer is permitted to,
subject to Section 5.4(b), (i) create Derived Data from the Specialist Agency Data, (ii)
use the Derived Data for internal business analysis purposes, and (iii) may use the Reports
or Derived Data from the Reports to produce internal and external performance comparisons
and/or analyses, including marketing and client service materials for use with the Customer’s
existing and prospective clients and partners. “Derived Data” shall mean
data created by the Customer, in connection with the Customer’s use of the Specialist
Agency Data as permitted under the terms of this Agreement, as a result of combining, processing,
changing, converting or calculating the Specialist Agency Data or any portion thereof with
other data and which cannot be readily reverse engineered such that a third-party may access
the Specialist Agency Data via the Derived Data. As a condition to creating or using Derived
Data as set forth above, the Customer agrees (i) to obtain any prior licenses, consents,
or permits required by the third party suppliers described in this Section 5.4, and (ii)
not to distribute or create Derived Data in the event the third party supplier prohibits
the use of their information in this manner. |
| (d) | Without limiting ▇.▇. ▇▇▇▇▇▇’▇ obligations to provide the Services, under no circumstances will ▇.▇. ▇▇▇▇▇▇ be under any obligation
to disclose to the Customer any information which may, in ▇.▇. ▇▇▇▇▇▇’▇ reasonable discretion, render ▇.▇. ▇▇▇▇▇▇ liable for breach of
its obligations to any third party including, but not limited to, any information relating to any database compiled and/or supplied by
that third party. |
| (e) | The provision of Specialist Agency Data to the Customer in accordance with the terms of this Agreement form part of the Services provided
by ▇.▇. ▇▇▇▇▇▇ under this Agreement. |
| 6. | WHEN ▇.▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER |
| 6.1. | Standard of Care; Liability. |
| (a) | ▇.▇. ▇▇▇▇▇▇ will use reasonable care in performing its obligations under this Agreement. ▇.▇. ▇▇▇▇▇▇ will not be in violation of this
Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care. |
| (b) | ▇.▇. ▇▇▇▇▇▇ will only be liable for the Customer’s direct Liabilities and only to the extent (i) they result from ▇.▇. ▇▇▇▇▇▇’▇
material breach of this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇ fraud, negligence, or willful default in performing its duties as set out in
this Agreement (including the selection, appointment or use by ▇.▇. ▇▇▇▇▇▇ of any Specialist Agency); or (ii) provided in Section 8.7.
Under no circumstances will ▇.▇. ▇▇▇▇▇▇ be liable for: |
(i) any loss of profits (whether direct
or indirect);
(ii) any indirect, incidental, consequential
or special damages of any form, incurred by any person or entity, whether or not foreseeable and regardless of the type of action in
which such a
claim may be brought, with respect to ▇.▇. ▇▇▇▇▇▇’▇ performance or non-performance under this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇
role as a service provider to the Customer;
(iii) any Liabilities suffered by any person as a result of
the failure of any of the Dependencies to be met;
(iv) the assumptions made by ▇.▇. ▇▇▇▇▇▇ in good faith in
preparing a Report proving to be incorrect, inaccurate or inapplicable or any assumption which could or should have been made not being
made;
(v) any Liabilities arising as a consequence of the Customer
using, or providing to any other person to use, any Report or information in or derived from or based on any Report, to make Trading Decisions
in respect of the Customer; or
(vi) any Liabilities suffered by any person relating to any
decisions made by ▇.▇. ▇▇▇▇▇▇ in complying with the AML/Sanctions Requirements.
| (c) | Subject to Sections 6.1(e) and 6.1 (f), the Customer will indemnify ▇.▇. ▇▇▇▇▇▇ against, and hold ▇.▇. ▇▇▇▇▇▇ harmless from, any Liabilities
that may be imposed on, or incurred by, ▇.▇. ▇▇▇▇▇▇ as a result of ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, provided that
▇.▇. ▇▇▇▇▇▇ has not materially breached the Agreement, and provided that ▇.▇. ▇▇▇▇▇▇ has not acted with negligence or engaged in fraud
or willful default in connection with the Liabilities in question. Nevertheless, the Customer will not be obligated to indemnify ▇.▇.
▇▇▇▇▇▇ under the preceding sentence with respect to any Liability for which ▇.▇. ▇▇▇▇▇▇ is liable under Section 8.7. |
| (d) | Subject to Section 6.1(b) and the limitations of liability provided in this Agreement, ▇.▇. ▇▇▇▇▇▇ will indemnify the Customer against,
and hold them harmless from, any direct Liabilities that may be imposed on or incurred by the Customer as a result of ▇.▇. ▇▇▇▇▇▇’▇,
or ▇.▇. ▇▇▇▇▇▇’▇ subcontractors’, delegates’ or agents’, material breach of this Agreement, or fraud, negligence,
or wilful default in connection with the Services provided pursuant to this Agreement. |
| (e) | Upon becoming aware of any event that will give rise to a liability for which a party could seek indemnification under this Agreement
(“Indemnified Party”), the Indemnified Party must take all commercially reasonable steps to mitigate such liability, but the
reasonable costs and expenses incurred by the Indemnified Party with respect to such mitigation shall be part of the indemnifiable liability.
The extent of the Indemnified Party’s compliance with this obligation will be taken into account in determining the amount of any compensation
but the Indemnified Party’s failure to comply with this obligation of mitigation will not otherwise relieve the other party of liability
in relation to the relevant matter. The Indemnified Party must promptly notify the other party of the relevant claim, stating in reasonable
detail the nature of the matter, the circumstances giving rise to the claim. Failure to do so, or delay in doing so, shall not affect
the Indemnified Party’s rights under an indemnity except to the extent that the failure or delay prejudices the rights of the other
party. |
| (f) | Under no circumstances will the Customer be liable for any indirect, incidental, consequential or special damages of any form, incurred
by any person or entity, regardless of the type of action in which such a claim may be brought. This Section 6.1(f) shall not apply in
respect of any third party claim that may be made against ▇.▇. ▇▇▇▇▇▇ as a result of ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement,
provided ▇.▇. ▇▇▇▇▇▇ has not materially breached the Agreement or otherwise acted with negligence, willful default or fraud in respect
of the circumstances giving rise to the third party claim. |
| (g) | Notwithstanding any provision herein that may be to the contrary, the maximum aggregate liability of ▇.▇. ▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇ Indemnitees
in respect of any and all claims of any kind arising out of, in connection with or relating to this Agreement or the provision of the
Services (together with any and all claims of any kind arising out of, in connection with or relating to the ETF Agency Services Agreement
or the provision of services under the ETF Agency Services Agreement), regardless of the form of action (including breach of warranty,
breach of contract, tort, negligence, strict liability or statutory) or type of damages, in respect of any calendar year, shall not exceed
an aggregate amount equal to five (5) times the total annual fees paid by the Customer under this Agreement and the ETF Agency Services
Agreement; provided, however, the foregoing liability cap shall not apply to an error by ▇.▇. ▇▇▇▇▇▇ in calculating the net asset value
of a Customer. |
| (a) | ▇.▇. ▇▇▇▇▇▇ will maintain and update from time to time business continuation
and disaster recovery procedures with respect to its global custody business that it determines
from time to time meet reasonable commercial standards. ▇.▇. ▇▇▇▇▇▇ will not be liable for
any Liabilities of any nature that the Customer may suffer or incur, caused by an act of
God, fire, flood, earthquakes or other disasters, civil or labor disturbance, war, terrorism,
act of any Governmental Authority or other act or threat of any authority (de jure or de
facto), legal constraint, fraud or forgery (other than on the part of ▇.▇. ▇▇▇▇▇▇ or its
agents, delegates, or sub-contractors), malfunction of equipment or software (except where
such malfunction is primarily and directly attributed to
▇.▇. ▇▇▇▇▇▇’▇ or its agents’, delegates’, or subcontractors’
negligence in maintaining or failure to properly maintain the equipment or software),
currency re-denominations, currency restrictions, failure of or the effect of rules or operations
of any external funds transfer system, inability to obtain (or interruption of) external
communication facilities, power failures or any other cause beyond the reasonable control
of ▇.▇. ▇▇▇▇▇▇ (including the non-availability of appropriate foreign exchange) (collectively,
“Force Majeure Event”) provided that Force Majeure Event does not include circumstances
where: |
| (i) | the default or delay could have been prevented by ▇.▇. ▇▇▇▇▇▇ using commercially reasonable efforts to mitigate the impact of such
default or delay and ▇.▇. ▇▇▇▇▇▇ failed to take such steps (including, with respect to ▇.▇. ▇▇▇▇▇▇, the implementation of its business
continuity plan and disaster recovery plan in a manner consistent with the standard of care in Section 6.1(a)); or |
| (ii) | the
default or delay is primarily and directly attributable to ▇.▇. ▇▇▇▇▇▇’▇ or its subcontractors’, agents’ or delegates’
negligence, fraud or wilful default. |
For the purposes of this Section 6.2, “agents,
delegates or subcontractors” means such agents, delegates or subcontractors that ▇.▇. ▇▇▇▇▇▇ appoints to provide Services
under this Agreement.
| 6.3. | ▇.▇. ▇▇▇▇▇▇ May Consult with Counsel. |
▇.▇. ▇▇▇▇▇▇ will be entitled to rely on, and
may act upon the advice of reputable professional advisors (which may be the professional advisors of the Customer or the Investment
Adviser) in relation to matters of law, regulation or market practice. For the avoidance of doubt, the cost of any advice obtained under
this
Section 6.3 will be at ▇.▇. ▇▇▇▇▇▇’▇ expense unless otherwise agreed between ▇.▇. ▇▇▇▇▇▇ and the Customer.
| 7.1. | Term and Termination. |
Except as expressly provided otherwise in this
Agreement, this Agreement shall be in effect for an initial term of three (3) years from the Services Commencement Date (the
“Initial
Term”). The Agreement will automatically renew for additional one year periods effective from the date of the end of
the Initial Term and thereafter every anniversary of the date of the end of the Initial Term, unless and until the Agreement is terminated
in accordance with Section 7.2 or Section 7.3.
| (a) | Following the Initial Term, Customer may terminate this Agreement
by giving not less than sixty (60) days’ prior written notice to ▇.▇. ▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇
may terminate this Agreement on two hundred and seventy (270) days’
prior written notice to the Customer. |
| (b) | Subject to Section 7.2(c) and Section 7.3, the Customer may terminate
this Agreement at any time during
the Initial Term by giving not less than sixty (60) days’ prior written notice to ▇.▇. ▇▇▇▇▇▇,
subject to payment of a termination fee where the termination occurs within the first three
(3) years of the Initial Term. The termination fee will be an amount equal to six (6) times
the average monthly fees |
invoiced during the six (6) month period prior to the Customer’s
notice of termination, or since the Services Commencement Date if such period is less than six (6) months.
| (c) | The Customer may terminate this Agreement in respect of a particular Service at any time during the Initial Term by giving not less
than sixty (60) days’ prior written notice to ▇.▇. ▇▇▇▇▇▇, subject to payment of a termination fee where the termination occurs
within the first three (3) years of the Initial Term. The termination fee payable if the Customer terminates this Agreement in respect
of a particular Service under this Section 7.2(c) will be an amount equal to six (6) times the average monthly fees invoiced during the
six (6) month period prior to the Customer’s notice of termination, or since the Services Commencement Date if such period is less
than six (6) months, for the relevant Service that is being terminated only. |
| 7.3. | Other Grounds for Termination. |
| (a) | Despite Section 7.1, if the Global Custody Agreement is terminated, either party may terminate this Agreement by giving written notice
to the other party and upon giving such written notice, and if this Agreement is terminated in such manner, then the effective date of
termination of this Agreement shall be the date the relevant Funds transition to a successor custodian or service provider. If such termination
occurs within the first three years of the Initial Term, the Customer shall pay ▇.▇. ▇▇▇▇▇▇ the early termination fee under Section 7.2(b),
unless the Customer terminated the Global Custody Agreement for material breach by ▇.▇. ▇▇▇▇▇▇. |
| (b) | Despite Section 7.1, either party may terminate this Agreement upon notice to the other party following the occurrence of any of the
following: |
| (i) | the other party (A) admits in writing its inability or is generally unable to pay its debts as they become due; (B) institutes, consents
to or is otherwise subject to the institution of any proceeding under title 11 of the United States Code, as in effect from time to time,
or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, composition with creditors, wind-down,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable
jurisdiction from time to time in effect and affecting the rights of creditors, generally; (C) is subject to an involuntary order for
the transfer of all or part of its business by a statutory authority; (D) has any of its issued shares suspended from trading on any exchange
on which they are listed (if applicable), or (E) is the subject of a measure similar to any of the foregoing; |
| (ii) | a relevant Governmental Authority withdrawing its authorization of either party; or |
| (iii) | the other party committing any material breach of this Agreement and failing to remedy such breach (if capable of remedy) within thirty
(30) days of being given written notice of the material breach, unless the parties agree to extend the period to remedy the breach. |
The Customer will not be liable to pay an early termination
fee under Section 7.2 if the Customer terminates this Agreement under this Section 7.3(b).
| (c) | Despite Section 7.1, the Customer may terminate this Agreement upon notice to ▇.▇. ▇▇▇▇▇▇ without being liable to pay an early termination
fee under Section 7.2 if there is a sale of all or substantially all of ▇.▇. ▇▇▇▇▇▇’▇ fund administration services business or any
other circumstance that means ▇.▇. ▇▇▇▇▇▇ would no longer be the service provider or contracting entity under this Agreement. |
| (d) | ▇.▇. ▇▇▇▇▇▇ may terminate this Agreement upon prior written notice to the Customer where ▇.▇. ▇▇▇▇▇▇ in its reasonable opinion, determines
that servicing the Customer raises reputation or regulatory concerns. |
| (e) | The Customer may terminate this Agreement upon prior written notice to ▇.▇. ▇▇▇▇▇▇ where the Customer, in its reasonable opinion,
determines that appointing ▇.▇. ▇▇▇▇▇▇ to provide the Services, or part of the Services, raises reputation or regulatory concerns. |
| 7.4. | Consequences of Termination |
Termination of this Agreement under the provisions of this
Section 7 will be without prejudice to the performance of any party’s obligations under this Agreement with respect to all outstanding
transactions at the date of termination. The parties agree that termination of this Agreement shall not prejudice any rights or obligations
of a party that accrued prior to termination of this Agreement. Any indemnities set out in this Agreement shall survive termination of
this Agreement.
| 7.5 | Transition following Termination. |
As soon as reasonably practicable following its resignation
or termination of appointment under this Agreement becoming effective and subject to payment of any amount owing to ▇.▇. ▇▇▇▇▇▇ under
this Agreement, ▇.▇. ▇▇▇▇▇▇ agrees on request of the Customer to transfer such records and related supporting documentation it holds under
this Agreement together with Customer Data in a form to be agreed with the Customer, to the Customer or to such other person as the Customer
may direct. ▇.▇. ▇▇▇▇▇▇ will provide the Services until a replacement service provider is in place, subject to the terms and conditions
of this Agreement (including Section 4). ▇.▇. ▇▇▇▇▇▇ will also provide reasonable assistance to the Customer and ▇.▇. ▇▇▇▇▇▇’▇ successor,
for such transfer, subject to the payment of such reasonable expenses and charges to be mutually agreed by the parties as ▇.▇. ▇▇▇▇▇▇
customarily charges for such assistance. The Customer undertakes to use its reasonable endeavors to appoint or procure the appointment
of a new administrative service provider as soon as practicable.
Notices pursuant to Section 7 shall be sent or served by registered
mail, nationally recognized delivery service, courier service or hand delivery to the address of the respective party as set out on Annex
I, unless at least two (2) days’ prior written notice of a new address is given to the other party in writing.
| 8.2. | Successors and Assigns. |
This Agreement will be binding on each of the parties’
successors and permitted assigns. The parties agree that neither party can assign or novate its rights and obligations under this Agreement
without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed.
This Agreement, including the Schedules and Appendices, sets
out the entire Agreement between the parties in connection with the subject matter, and this Agreement supersedes any other agreement,
statement, or representation relating to the Services under this Agreement, whether oral or written. Amendments must be in writing and
signed by both parties.
The Customer acknowledges that ▇.▇. ▇▇▇▇▇▇ will not be required
to maintain any insurance coverage specifically for the benefit of the Customer. ▇.▇. ▇▇▇▇▇▇ will, however, provide summary information
regarding its own general insurance coverage to the Customer upon written request with such summary to include the scope of coverage of
the insurance and the amount insured.
| 8.5. | Governing Law and Jurisdiction. |
This Agreement will be construed, regulated and
administered under the laws of the United States or the State
of New York, as applicable, without regard to New York’s principles regarding conflict of laws, except that the foregoing
shall not reduce any statutory right to choose New York law or forum. The United States District Court for the Southern District of New
York will have the sole and exclusive jurisdiction over any lawsuit or other judicial proceeding relating to or arising from this Agreement.
If that court lacks federal subject matter jurisdiction, the Supreme Court of the State of New York, New York County will have sole and
exclusive jurisdiction. Either of these courts will have proper venue for any such lawsuit or judicial proceeding, and the parties waive
any objection to venue or their convenience as a forum. The parties agree to submit to the jurisdiction of any of the courts specified
and to accept service of process to vest personal jurisdiction over them in any of these courts. The parties further hereby knowingly,
voluntarily and intentionally waive, to the fullest extent permitted by Applicable Law, any right to statutory prejudgment interest and
a trial by jury with respect to any such lawsuit or judicial proceeding arising or relating to this Agreement or the transactions contemplated
hereby. To the extent that in any jurisdiction the Customer may now or hereafter be entitled to claim, for itself or its assets, immunity
from suit, execution, attachment (before or after judgment) or other legal process, the Customer shall not claim, and it hereby irrevocably
waives, such immunity.
| 8.6. | Severability; Waiver; and Survival. |
| (a) | If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular
circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances
or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired. |
| (b) | Except as otherwise provided in this Agreement, no failure or delay on the part of either party in exercising any power or right under
this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise,
or the exercise of any other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default,
is effective unless it is in writing and signed by the party against whom the waiver is to be enforced. |
| (c) | The
parties’ rights, protections, and remedies under this Agreement shall survive its termination. |
| (a) | ▇.▇. ▇▇▇▇▇▇ may subcontract to a reputable subcontractor, agent or delegate any of its functions under this Agreement. ▇.▇.
▇▇▇▇▇▇ will, on reasonable request by
the Customer in writing from time to time, provide
to the Customer such details
of the subcontractors, agents, delegates
and other third parties used in respect of the provision of the Services as reasonably requested by the Customer. |
| (b) | ▇.▇. ▇▇▇▇▇▇ will remain solely responsible and liable to the Customer for obligations under this Agreement performed by any such subcontractors,
agents
or delegates to the same extent as it would have been had ▇.▇. ▇▇▇▇▇▇ performed the subcontracted or delegated Service itself.
▇.▇. ▇▇▇▇▇▇ will, unless agreed otherwise with the Customer, remain the Customer’s sole point of contact regarding the Services. |
| (c) | If the Customer expresses any concerns to ▇.▇. ▇▇▇▇▇▇ regarding bona fide performance issues with any subcontractor, delegate or agent,
▇.▇. ▇▇▇▇▇▇ will cooperate with the Customer to resolve such concerns on a mutually acceptable basis. |
| 8.8. | ▇.▇. ▇▇▇▇▇▇ Provides Diverse Financial Services and May Generate
Profits as a Result. |
The Customer hereby authorizes ▇.▇. ▇▇▇▇▇▇
to act under this Agreement notwithstanding that:
| (a) | ▇.▇. ▇▇▇▇▇▇ or any of its divisions, branches or ▇.▇. ▇▇▇▇▇▇ Affiliates may have a material interest in transactions entered into
by the Customer or that circumstances are such that ▇.▇. ▇▇▇▇▇▇ may have a potential conflict of duty or interest, including the fact
that ▇.▇. ▇▇▇▇▇▇ or ▇.▇. ▇▇▇▇▇▇ Affiliates may act as a market maker in the markets in which the Customer participates, provide brokerage
services to other customers, act as financial adviser to the issuer of securities in which the Customer invests, act in the same transaction
as agent for more than one customer, have a material interest in the issue of securities; or earn profits from any of the activities listed
herein; and |
| (b) | ▇.▇. ▇▇▇▇▇▇ or any of its divisions, branches or ▇.▇. ▇▇▇▇▇▇ Affiliates may be in possession of information tending to show that the
Instructions received may not be in the best interests of the Customer. ▇.▇. ▇▇▇▇▇▇ is not under any duty to disclose any such information
to the Customer. |
| (a) | Subject to this Section 8.10, ▇.▇. ▇▇▇▇▇▇ will hold all Confidential Information in confidence and will not disclose any Confidential
Information to any third parties, including without limitation ▇.▇. ▇▇▇▇▇▇ Affiliates, for the purposes other than as set forth in this
Agreement, except where it is required to do so by Applicable Law or has received express prior written consent of the Customer. |
| (b) | The Customer authorizes ▇.▇. ▇▇▇▇▇▇ to use Confidential Information in connection with the provision of services to the Customer,
including, without limitation (i) in connection with the administration of the relationship with the Customer, (ii) for any operational,
credit or risk management purposes, (iii) for due diligence, verification or sanctions screening purposes or (iv) for the prevention or
investigation of crime, fraud or any malpractice, including the prevention of terrorism, money laundering and corruption as well as for
tax reporting. |
| (c) | The Customer authorizes ▇.▇. ▇▇▇▇▇▇ to disclose Confidential Information on a strict need-to-know basis only to: |
| (i) | any subcontractor, agent or any person required in connection with ▇.▇. ▇▇▇▇▇▇’▇ provision of relevant
Services under this Agreement; |
| (ii) | its and its ▇.▇. ▇▇▇▇▇▇ Affiliates’ professional advisors, auditors and public accountants; |
| (iii) | its branches and any ▇.▇. ▇▇▇▇▇▇ Affiliates; |
| (iv) | any revenue authority or any governmental entity but only to the extent required to process any tax claim. |
| (d) | If any disclosure is compelled by a court or other competent authority under Applicable Law, ▇.▇. ▇▇▇▇▇▇ shall make reasonable efforts
to, where permitted by Applicable Law, notify the Customer of such disclosure request. ▇.▇. ▇▇▇▇▇▇ may disclose any of the Confidential
Information to any bank regulatory authority having jurisdiction over ▇.▇. ▇▇▇▇▇▇ upon the request of the bank regulatory authority and
shall, to the extent practicable and permitted by Applicable Law, notify the Customer of such disclosures; provided that, notwithstanding
anything to the contrary in the foregoing, ▇.▇. ▇▇▇▇▇▇ will have no obligation to notify the Customer of requests or disclosures made
pursuant to routine, regular exams or investigations, or routine, regular requests for information from a bank regulatory authority having
jurisdiction over ▇.▇. ▇▇▇▇▇▇. Disclosures described in the previous sentence shall not be a violation of this Section 8.10. |
| (e) | Subject to Section 8.10(f), ▇.▇. ▇▇▇▇▇▇ shall, upon the Customer’s request at expiration or termination of the Agreement, cease
using the Confidential Information and return, delete or destroy or otherwise put beyond use the Confidential Information which ▇.▇. ▇▇▇▇▇▇
has in its systems or otherwise in its possession or under its control. |
| (f) | Notwithstanding
▇.▇. ▇▇▇▇▇▇’▇ obligations under this Section 8.10, ▇.▇. ▇▇▇▇▇▇ shall be permitted
to retain copies of the Confidential Information of the Customer as is required by Applicable
Law. Furthermore, ▇.▇. ▇▇▇▇▇▇ shall not be required to expunge Confidential Information of
the Customer that may be contained in archives, tapes or other materials retained pursuant
to regular record keeping policies or as may be required by law or regulation. ▇.▇. ▇▇▇▇▇▇
further agrees that after receipt of a request under Section 8.10(e), no attempt will be
made by ▇.▇. ▇▇▇▇▇▇ representatives to access or retrieve Customer Data stored in the backup
media without Customer’s
prior written consent unless required by law, regulation or an investigation, audit
or similar conduct in accordance with
▇.▇. ▇▇▇▇▇▇’▇ internal governance policies or processes or as needed by ▇.▇.
▇▇▇▇▇▇ to exercise its rights under the Agreement. |
| (g) | The Customer will keep the terms and conditions in the Fee Schedule
confidential except the Customer may disclose this information: (i) on a need-to-know
basis to its and its affiliates’ directors, officers, employees, agents and
professional advisors (including financial and legal advisors, accountants and consultants);
(ii) where disclosure is required by Applicable Law (which shall include disclosure to a
regulator with jurisdiction over the the Customer upon request of such regulator); or (iii)
where disclosure is otherwise permitted by ▇.▇. ▇▇▇▇▇▇. |
| 8.10. | Use of Party’s Name. |
| (a) | Subject to Section 8.11(b), the parties agree not to use (or permit
the use of) the
other party’s name, the name of affiliates of the other party, or any trade
name, trade mark, trade device, service mark, symbol mark, symbol or any abbreviation, contraction
or simulation thereof owned by the other party or their affiliate, in any document, advertising,
publication or publicity material, including but not limited to notices, sales literature,
stationery, advertisements, etc., without the prior written consent of the other party (which
consent shall not be unreasonably withheld), provided that no prior written consent is needed
by ▇.▇.
▇▇▇▇▇▇ to use the Customer’s name or the name of its Related Bodies Corporate
(a) if the document merely states that ▇.▇. ▇▇▇▇▇▇ is providing accounting services to the
Customer if required by Applicable Law, (b) for the purpose of providing or receiving the
Services contemplated by this Agreement, or (c) in internal materials only (and not external
materials to third parties) required by that party to conduct its business. For the avoidance
of doubt, the preceding exclusion does not apply to ▇.▇. ▇▇▇▇▇▇’▇
use of any trade mark, trade device, service mark, symbol mark, symbol or similar
of the Customer or Related Bodies Corporate of the Customer. The parties also agree not to
represent directly or indirectly, that any product or any service provided by that party
has been approved or endorsed by the other party or by any officer or employee of the other
party. |
| (b) | Section 8.11(a) does not limit or derogate from any rights that a
party (or its affiliates) may have under a separate agreement with the other party (or one
of its affiliates) to use (or permit the use of) the
other party’s name, the name of affiliates of the other party, or any trade
name, trademark, trade device, service mark, symbol mark, symbol or any abbreviation, contraction
or simulation thereof owned by the other party or their affiliates. |
This Agreement may be executed in several
counterparts each of which will be deemed to be an original and together will constitute one and the same agreement.
| 8.12. | No Third Party Beneficiaries. |
9. A
PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE NO RIGHT TO ENFORCE ANY TERM OF THIS AGREEMENT.PRIVACY.
▇.▇. ▇▇▇▇▇▇ or ▇.▇. ▇▇▇▇▇▇ Affiliates
may, in connection with this Agreement, process information about the Customer, the Customer’s directors, officers and employees
and its affiliates and agents which may constitute personal data as defined under relevant Data Protection Laws (“Personal Data”).
Where ▇.▇. ▇▇▇▇▇▇ or a ▇.▇. ▇▇▇▇▇▇ Affiliate is required to process Personal Data, ▇.▇. ▇▇▇▇▇▇ will ensure that it does so, and will procure
that ▇.▇. ▇▇▇▇▇▇ Affiliates do so, in accordance with all applicable requirements under applicable Data Protection Laws and all applicable
requirements under this Agreement. For further details of how ▇.▇. ▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇ Affiliates process personal data, please see:
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇, which may be updated from time to time. “Data Protection Laws” means laws applicable to ▇.▇. ▇▇▇▇▇▇’▇
or ▇.▇. ▇▇▇▇▇▇ Affiliates’ collection, use, disclosure, sharing, transfer, storage, destruction, or other processing of Personal
Data in the country in which ▇.▇. ▇▇▇▇▇▇ or the relevant ▇.▇. ▇▇▇▇▇▇ Affiliate is located.
| (a) | ▇.▇. ▇▇▇▇▇▇ will comply with all Applicable Laws applicable to them in the provision of services contemplated by this Agreement, including
all applicable anti-bribery and corruption laws and regulations. |
| (b) | ▇.▇. ▇▇▇▇▇▇ will, subject to its applicable internal policies, provide the Customer with such information and assistance as may reasonably
be requested by the Customer from time to time in order to enable the Customer to in order to enable the Customer to comply with its due
diligence, reporting and statement making obligations under applicable modern slavery laws. |
12. ▇.▇. ▇▇▇▇▇▇ MUST NOTIFY THE CUSTOMER
OF ANY BREACH OF THIS AGREEMENT (OTHER THAN BREACHES OF SECTIONS 8.10 OR 9) WITHIN 24 HOURS OF ▇.▇. ▇▇▇▇▇▇ DETERMINING THAT SUCH BREACH
HAS OCCURRED. ▇.▇. ▇▇▇▇▇▇ MUST ACT REASONABLY AND WITHOUT UNDUE DELAY IN MAKING DETERMINATIONS AS TO WHETHER A BREACH OF THE AGREEMENT
HAS OCCURRED FOR THE PURPOSES OF THIS SECTION 11. THIS SECTION 11 SHALL NOT APPLY TO BREACHES OF SECTIONS 8.10 OR 9.RECORD KEEPING /
DATA RETENTION
▇.▇. ▇▇▇▇▇▇ agrees to keep such documentary
records as are required to be maintained by ▇.▇. ▇▇▇▇▇▇ under this Agreement and under Applicable Laws applicable to ▇.▇. ▇▇▇▇▇▇ as a
service provider under this Agreement.
| 13. | GOVERNMENTAL AUTHORITY AUDIT |
| (a) | The parties acknowledge that a Governmental Authority may in certain circumstances require Customer to provide access to the data
and records maintained by ▇.▇. ▇▇▇▇▇▇ under this Agreement with respect to the Services. |
| (b) | Subject to Applicable Law, ▇.▇. ▇▇▇▇▇▇ will, upon reasonable written request, make ▇.▇. ▇▇▇▇▇▇’▇ records related to the Services
available to the Customer for inspection by a Governmental Authority, including the Securities and Exchange Commission (“SEC”). |
| 14. | RISK ASSESSMENT AND PENETRATION TESTING |
▇.▇. ▇▇▇▇▇▇ will complete from time to
time, risk assessment an penertration testing with respect to its funds services business that it determines from time to time meet reasonable
commercial standards.
| 15. | GOVERNANCE AND ACCOUNT MANAGEMENT |
| | (a) | ▇.▇. ▇▇▇▇▇▇ must, prior to the Service Commencement Date, appoint as ▇.▇. ▇▇▇▇▇▇ Representative
an appropriately senior employee, acceptable to the Customer, familiar with the ▇.▇. ▇▇▇▇▇▇ |
organisation and with commercial and technical knowledge and
skills directly relevant to the provision of the Services described in this Agreement.
| (b) | The Customer must, prior to the Service Commencement Date, appoint an appropriately senior and suitably qualified and experienced
employee or contractor of the Customer as Customer Representative to liaise with ▇.▇. ▇▇▇▇▇▇ Representative. |
| (c) | Customer Representative and ▇.▇. ▇▇▇▇▇▇ Representative must: |
| (i) | monitor and review ▇.▇. ▇▇▇▇▇▇’▇ performance of its obligations under this Agreement on an ongoing
basis; |
| (ii) | ensure operational and support processes and procedures are properly documented and that such documents are properly maintained; |
| (iii) | act as initial point of contact for incident monitoring, incident handling and escalation; |
| (iv) | attend (and, if necessary, chair) operational meetings between ▇.▇. ▇▇▇▇▇▇ and the Customer; |
| (v) | ensure the provision of agreed management information; |
| (vi) | meet as mutually agreed, but at least monthly, to review performance, coordinate the Services and discuss future Customer requirements;
and |
| (vii) | serve as the principal interface between the parties with respect to all issues relating to the Services. |
| (d) | ▇.▇. ▇▇▇▇▇▇ and the Customer must act in good faith to establish a governance framework which is aligned to requirements outlined
in the Service Level Documentation. |
| 16. | INTELLECTUAL PROPERTY RIGHTS. |
| (a) | This Agreement does not transfer or grant any rights in the Intellectual Property Rights of either party, whether held now or arising
hereafter, other than the limited rights of Customer to use the Services (including, without limitation, the Products, Data and Services
Output) and of ▇.▇. ▇▇▇▇▇▇ to use the Customer Data expressly set forth in this Agreement. |
| (b) | The Customer must ensure that ▇.▇. ▇▇▇▇▇▇ will, if it requires, have a non-exclusive, nontransferable, royalty free license and right
to use Intellectual Property Rights proprietary to the Customer or its Related Bodies Corporate in providing the Services to the Customer.
The grant of licence and rights will not permit ▇.▇. ▇▇▇▇▇▇ to use any trade mark, service mark, or business or other name or logo of
the Customer or its Related Bodies Corporate except as set forth in this Agreement. |
| (c) | The Customer acknowledges that it is integral to the continuing business operations of ▇.▇. ▇▇▇▇▇▇ to enable it to provide business
process services for its clients and further acknowledges that, as between Customer and ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ retains ownership and
rights to Products and other Intellectual Property Rights created by it or its Related Bodies Corporate, including any enhancements and
improvements developed thereto by ▇.▇. ▇▇▇▇▇▇, in providing the Services. The Customer will not at any time, whether before or after termination
of this Agreement, make or assert, a claim in respect of such Products or other Intellectual Property Rights adverse to that of ▇.▇. ▇▇▇▇▇▇
or its Related Bodies Corporate as owner. The Customer will procure that none of its Related Bodies Corporate will make or assert, a claim
to such Products or other Intellectual Property Rights. If Products or other Intellectual Property Rights are created specifically for
the Customer by ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ shall retain ownership and rights to such Products and Intellectual Property Rights unless ▇.▇.
▇▇▇▇▇▇ and the Customer expressly agree in writing pursuant to the terms of a |
separate agreement executed between the Customer and ▇.▇.
▇▇▇▇▇▇ that such Products or Intellectual Property Rights are to be created and used exclusively for the Customer and not any other clients
of ▇.▇. ▇▇▇▇▇▇.
▇.▇ ▇▇▇▇▇▇ will perform or cause its subcontractors
to perform background checks of employees of ▇.▇. ▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇ Affiliates and those employees of ▇.▇. ▇▇▇▇▇▇’▇ subcontractors
who are directly engaged in performing any of the services under this Agreement. The background checks will be conducted in accordance
with relevant national laws which shall include but not be limited to, where applicable and required by relevant national laws, identity,
employment reference, criminal background, anti-money laundering and such other checks as determined by ▇.▇. ▇▇▇▇▇▇ from time to time.
| (a) | ▇.▇. ▇▇▇▇▇▇ agrees that on or after each anniversary of this Agreement, Customer may, acting reasonably, request that ▇.▇. ▇▇▇▇▇▇
meet with Customer to review ▇.▇. ▇▇▇▇▇▇’▇ performance of the Services in the previous twelve (12) months. |
| (b) | Where required, appropriate and reasonable, ▇.▇. ▇▇▇▇▇▇ and Customer will work together to agree upon and prepare an agenda and agree
upon and prepare any requested reports for each meeting within a reasonable timeframe before the relevant meeting. |
| (c) | ▇.▇. ▇▇▇▇▇▇ agrees that on or after each anniversary of this Agreement, Customer may, acting reasonably, request that ▇.▇. ▇▇▇▇▇▇
meet with Customer to review the current appropriateness of the terms of the Agreement. |
MACQUARIE
ETF TRUST for and on behalf of
each Customer listed in Annex I |
JPMORGAN
CHASE BANK, N.A. |
| |
|
|
| By: |
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
By: |
/s/ ▇▇▇▇ ▇▇▇▇ |
|
| Name: |
▇▇▇▇▇▇▇
▇▇▇▇▇ |
Name:
|
▇▇▇▇
▇▇▇▇ |
| Title: |
Division
Director |
Title:
|
Executive
Director |
| |
|
|
|
|
|
Annex I
List of Customers
Fund Services
Agreement dated November 17, 2023
| Name |
Entity Type |
Jurisdiction |
ERISA Benefit
Plan Assets
(Y/N) |
Address for Notices |
| Macquarie Global Listed Infrastructure ETF |
ETF |
DE |
N |
100 Independence, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
| Macquarie Tax-Free USA Short Term ETF |
ETF |
DE |
N |
100 Independence, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
| Macquarie Energy Transition ETF |
ETF |
DE |
N |
100 Independence, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
▇▇▇▇▇
▇▇
Form of Joinder
JOINDER TO FUND SERVICES AGREEMENT
This
Joinder (“Joinder”) to the FUND SERVICES AGREEMENT, dated [__________] among each of the Customers listed on Annex I
thereto and JPMORGAN CHASE BANK, N.A. (“▇.▇. ▇▇▇▇▇▇”), as amended as of the date hereof (the “Agreement”),
is made and entered into as of [DATE], between [NEW CUSTOMER] (“New Customer”) and ▇.▇. ▇▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS,
the Customer and ▇.▇. ▇▇▇▇▇▇ entered into the Agreement;
WHEREAS,
New Customer requests that ▇.▇. ▇▇▇▇▇▇ provide the Services to New Customer under the terms and conditions set forth in the Agreement;
and
WHEREAS,
▇.▇. ▇▇▇▇▇▇ agrees to provide the Services pursuant to the terms and conditions set forth in the Agreement in respect of the New Customer.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby agree as follows:
| 1. | Definitions.
Unless otherwise defined herein, defined terms used in this Joinder shall have the meaning
ascribed to such terms in the Agreement. |
| 2. | Joinder.
New Customer hereby agrees to be subject to and bound by the terms and conditions of the
Agreement. |
| 3. | Amendments.
The Agreement shall be amended as follows: |
(A) Annex
I of the Agreement is hereby amended and restated in its entirety by ▇▇▇▇▇ ▇ hereto.
(B) Save
as amended by this Joinder, the Agreement shall remain in full force and effect.
| 4. | Representations.
Each party represents to the other parties that all representations contained in the Agreement
are true and accurate as of the date of this Joinder, and that such representations are deemed
to be given or repeated by each party, as the case may be, on the date of this Joinder. |
| 5. | Entire
Agreement. This Joinder and the Agreement and any documents referred to in
each of them, constitutes the whole agreement between the parties relating to their subject
matter and supersedes and extinguishes any other drafts, agreements, undertakings, representations,
warranties and arrangements of any nature, whether in writing or oral, relating to such subject
matter. If any of the provisions of this Joinder are inconsistent with or in conflict with
any of the provisions of the Agreement then, to the extent of any such inconsistency or conflict,
the provisions of this Joinder shall prevail as between the parties. |
| 6. | Counterparts.
This Joinder may be executed in any number of counterparts which together shall constitute
one agreement. Each party hereto may enter into this Joinder by executing a counterpart and
this Joinder shall not take effect until it has been executed by both parties. |
| 7. | Law
and Jurisdiction. This Joinder shall be governed by, and construed in accordance
with, the laws of the State of New York. |
IN WITNESS WHEREOF, the parties have
executed this ▇▇▇▇▇▇▇ as of the date first above written
| [Include
a separate signature block for each New |
JPMORGAN
CHASE BANK, N.A. |
| Customer
or one for Investment Adviser signing on |
|
| behalf
of each New Customer] |
|
| |
By: |
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|
| |
Name: |
| By: |
|
|
Title: |
| Name: |
|
| Title: |
|
| |
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Annex I
List of Customers
▇▇▇▇▇▇▇ dated [INSERT DATE
OF JOINDER] to Fund Services Agreement dated [INSERT DATE OF FUND SERVICES AGREEMENT]
| Name |
Entity Type |
Jurisdiction |
ERISA
Benefit Plan
Assets (Y/N) |
Address for Notices |
Customer-specific Services |
| |
|
|
|
|
|
[Note: List of Customers on Joinder should include all current parties
to the Fund Services Agreement, along with those added by the Joinder.]
Annex II
Electronic Access
1.
▇.▇. ▇▇▇▇▇▇ may permit the Customer,
and its Authorized Persons and other persons designated by the Customer or its Authorized Persons (collectively “Users”),
to access certain electronic systems and applications (collectively, the “Products”) and to access or receive Data (as defined
below) electronically in connection with the Agreement, including, without limitation the Website Portal. ▇.▇. ▇▇▇▇▇▇ may, from time
to time, introduce new features to the Products or otherwise modify or delete existing features of the Products in its sole discretion.
▇.▇. ▇▇▇▇▇▇ shall endeavor to give the Customer reasonable prior written notice of its termination or suspension of access to the Products,
including suspension or cancelation of any User Codes, but may do so immediately if ▇.▇. ▇▇▇▇▇▇ determines, in its sole discretion and
acting in good faith, that providing access to the Products would violate Applicable Law or that the security or integrity of the Products
is known or suspected to be at risk. Access to the Products shall be subject to the Security Procedure.
2.
In consideration of the
fees paid by the Customer to ▇.▇. ▇▇▇▇▇▇ and subject to any applicable software license in relation to ▇.▇. ▇▇▇▇▇▇-owned or sublicensed
software provided for a particular application and Applicable Law, ▇.▇. ▇▇▇▇▇▇ grants to the Customer a non-exclusive, non-transferable,
royalty-free, limited and revocable license to use the Products and the information and data made available through the Products or transferred
electronically (the “Data”) for the Customer’s internal business use only. The Customer may download the Data and print
out hard copies for its reference, provided that it does not remove any copyright or other notices contained therein. The license granted
herein will permit use by the Users, provided that such use shall be in accordance with the terms of the Agreement, including this Annex.
The Customer will not disclose or distribute (and will cause the Users not to disclose or distribute) to any other party, or allow any
other party to access, inspect or copy the Products or any Data, except (A) in respect of Data other than Specialist Agency Data, as reasonably
necessary in the course of Customer’s management or administration of the funds or accounts for which services are provided under
this Agreement or as otherwise allowed by the Agreement, and (B) in respect of Specialist Agency Data, as permitted under Section 5.3(a).
The Customer acknowledges that elements of the Data, including prices, Corporate Action information, and reference data, may have been
licensed by ▇.▇. ▇▇▇▇▇▇ from third parties and that any use of such Data beyond that authorized by the foregoing license, may require
the permission of one or more third parties in addition to ▇.▇. ▇▇▇▇▇▇. ▇.▇. ▇▇▇▇▇▇ represents and warrants that in respect of the services
provided by ▇.▇. ▇▇▇▇▇▇ under this Agreement: (i) it has the right to furnish the Products and Data, such Product and Data do not and
will not infringe any third party Intellectual Property Rights, and ▇.▇. ▇▇▇▇▇▇ will provide the Products and Data hereunder free of all
liens, claims, encumbrances and other restrictions; and (ii) Customer shall be entitled to use and enjoy the benefit of the Products and
Data, subject to and in accordance with the terms of this Agreement.
3.
The Customer acknowledges
that there are security, cyberfraud, corruption, transaction error and access availability risks associated with using open networks such
as the internet to access and use the Products, and the Customer hereby expressly assumes such risks, subject to ▇.▇. ▇▇▇▇▇▇’▇ obligations
in relation to data security under this Agreement. The Customer is solely responsible for obtaining, maintaining and operating all systems,
software (including antivirus software, anti-spyware software, and other internet security software) and personnel necessary for the Customer
and its Users to access and use the Products. All such software must be interoperable with ▇.▇. ▇▇▇▇▇▇’▇ software. Each of the Customer
and ▇.▇. ▇▇▇▇▇▇ shall be responsible for the proper functioning, maintenance and security of its own systems, services, software and other
equipment.
4.
In
cases where ▇.▇. ▇▇▇▇▇▇’▇ website or the Products are unexpectedly down or otherwise unavailable, ▇.▇. ▇▇▇▇▇▇ shall, absent a
force majeure event, promptly notify the Customer in writing and, absent a Force Majeure Event, provide other appropriate means for
the Customer or its Users to instruct ▇.▇. ▇▇▇▇▇▇ or obtain reports from ▇.▇. ▇▇▇▇▇▇. ▇.▇. ▇▇▇▇▇▇ shall not be liable for any
Liabilities arising out of the Customer’s use of, access to or inability to use the Products in the absence of ▇.▇.
▇▇▇▇▇▇’▇ ▇▇▇▇▇ negligence, fraud or willful misconduct.
5.
Use of the Products may
be monitored, tracked, and recorded. In using the Products, the Customer hereby expressly consents to, and will ensure that its Users
are advised of and have consented to, such monitoring, tracking and recording, and ▇.▇. ▇▇▇▇▇▇’▇ right to disclose data derived
from such activity in accordance with the Agreement, including this Annex. ▇.▇. ▇▇▇▇▇▇ shall own all right, title and interest in the
data reflecting the Customer usage of the Products or ▇.▇. ▇▇▇▇▇▇’▇ website (including general usage data and aggregated transaction
data), provided that ▇.▇. ▇▇▇▇▇▇’▇ use of such data shall remain subject to its obligations of confidentiality set forth in this
Agreement. Individuals and organizations should have no expectation of privacy unless local law, regulation, or contract provides otherwise.
The Customer hereby expressly consents, and will ensure that its Users are advised of and have consented to, ▇.▇. ▇▇▇▇▇▇’▇ collection,
storage, use and transfer (including to or through jurisdictions that do not provide the same statutory protection as the originating
jurisdictions(s)) of their personal data. Any personal data collected through, or in connection with, the Customer’s use of the
Products shall be subject to ▇.▇. ▇▇▇▇▇▇’▇ Privacy Policy (available at: ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇) and Cookies Policy
(available at: ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇), each as updated from time to time and incorporated herein by reference.
6.
▇.▇. ▇▇▇▇▇▇ will not
in any way, at any time (including post termination of this Agreement) use or disclose the Customer’s data or information (including
Personal Information) or derive information (in any way) from it for any advertising, marketing or similar commercial purposes of ▇.▇.
▇▇▇▇▇▇, its affiliates or any third party or directly or indirectly support such use in any manner by anyone. Furthermore, ▇.▇. ▇▇▇▇▇▇
will not capture, maintain, reverse engineer, scan, index, share or use Customer data or information, or otherwise use any data-mining
technology on the Customer’s data or information except to the extent necessary for ▇.▇. ▇▇▇▇▇▇ to: (a) provide the services in
accordance with this Agreement; or (b) enhance or improve the Services for the Customer and, in the case of (b), provided that any of
Customer’s data or information used is only in anonymized and aggregated form such that Customer’s and/or its Related Bodies
Corporate’s names are not disclosed or otherwise identified in anyway (directly or indirectly) to other clients or third parties
either as the source of such data or as the subject matter of the data (at any time).
7.
The
Customer shall not knowingly upload, post or transmit to or distribute or otherwise publish through the Products or ▇.▇.
▇▇▇▇▇▇’▇ website any materials which (i) restrict or inhibit any other user from using and enjoying the Products or the
website, (ii) are defamatory, offensive, explicit, or indecent, (iii) infringe the rights of third parties including intellectual
property rights, (iv) contain a virus, Trojan horse, worm, time bomb, cancelbot or other harmful component, or (v) constitute or
contain false or misleading information.
8.
The Customer shall promptly
and accurately designate in writing to ▇.▇. ▇▇▇▇▇▇ the geographic location of its Users (but not identity) upon written request. The Customer
shall not access, and shall not permit its Users to access, the service from any jurisdiction where ▇.▇. ▇▇▇▇▇▇ informs the Customer,
or where the Customer has actual knowledge, that the service is not authorized for use due to local regulations or laws, including applicable
software export rules and regulations. Prior to submitting any document which designates the Users, the Customer shall obtain from each
User all necessary consents
for providing such document to enable ▇.▇. ▇▇▇▇▇▇ to process data
concerning that User for the purposes of providing the Products for such purpose.
9.
The Customer will be
subject to and shall comply with Applicable Law with regard to its use of the Products, including Applicable Law concerning restricting
collection, use, disclosure, processing and free movement of the Data.
10.
The
Customer shall be responsible for the compliance of its Users with the terms of this Annex.
Schedule 1
Scope of Services
Scope
of Service
Fund
Accounting
Transaction
Processing
| ■ | Accounting
Basis: Books and records maintained in alignment with fund domiciled GAAP, IFRS
and
client instruction |
| ■ | Portfolio
trades processing – market standard automated trade files |
| ■ | Corporate
Actions processing including taxability reprocessing upon issuance of US tax treatment |
| ■ | Portfolio
Income Recognition |
| ■ | Capital
Stock Processing |
| ■ | Foreign
Capital Gains Tax |
Reconciliations
| ■ | Securities
Reconciliations |
| ■ | Transfer
Agent Reconciliation |
Net
Asset Value (NAV) Calculation and Dissemination
| ■ | Fund
NAV valuation points |
| ■ | Single
Net Asset Value (NAV) per fund class per day |
| ■ | Money
Market Funds (if applicable) |
| o | Support of constant and floating
NAVs |
| o | Mark to market ‘shadow NAV’ and reconciliation to amortized cost valuation (2a-7
pricing) |
| o | Money market yield calculations and
risk metrics e.g., WAM, WAL |
| o | Release of NAV to TA, client or third
parties at agreed upon timeframes |
Fund
Accounting Calculations and Reporting
| ■ | Yield
Calculations – support SEC yield calculation (7-day, 30 day, subsidized, unsubsidized) |
| o | Self-service
of standard VPR/JPM Access reporting suite |
| | o | ASC
820 – Fair Value Measurements |
| | o | Rule
2a-5 support comparison of trade price levels to market prices – “back testing” |
| | o | Oversight
Tools and Services |
Fund
Event Activity Processing
| ■ | Asset
Transfers – In Kinds, fund mergers |
| ■ | Fund/Class
launches and closures |
Financial
and Regulatory Reporting
| ■ | Preparation
of financial statements in standard ▇▇ ▇▇▇▇▇▇ format including Schedule/Portfolio of Investments |
| ■ | Production
of stylized, print ready financial statements with publishing capabilities |
| ■ | Use
of Snippets for the notes to financial statements |
| ■ | Coordinate
audit process and planning timetable |
| ■ | Preparation
of extended trial balance and working papers in JPM standard format |
Regulatory
Filings and Reporting
| ■ | Preparation
and coordination of the annual and semi-annual report ▇▇▇▇▇ filing version for Forms N-CSR and N-CSRS |
| ■ | Preparation
and filing of Form N-CEN |
| ■ | Preparation
and filing of Form N-PORT |
| o | Obtain and include Risk Metrics in
monthly N-PORT filings (optional service - additional fees apply) |
Tailored
Shareholder Reporting
| ■ | Production
and filing of stylized, iXBRL tagged, print ready share class level reports |
Treasury
Services
Expenses
| ■ | Expense
Calculations – e.g., management fee, fee waivers, expense cap and basis point analysis |
Distributions
and Related Reporting
| ■ | Distribution
calculations including income forecasting and expense projections |
| ■ | Form
10-99 DIV Reporting |
| ■ | Preparation
of ICI Primary/Secondary/NRA to support tax characterization of distributions |
Survey
Reporting – standard ICI, Morningstar, Lipper, Imoneynet
| ■ | Additional
surveys may require fees |
Regulatory
Reporting Support
| ■ | Provision
of data to support Regulatory Filings including Form 13F Reporting, and 13G Reporting |
| ■ | Provision
of data and filing Form 24F-2 Reporting |
| ■ | Preparation
and dissemination of vendor/trustee 1099-Misc Forms annually |
| ■ | Calculation
of data to support Financial Statements (Portfolio Turnover and Expense Ratios) |
| ■ | Provision
of data to support Prospectus and SAI updates |
| ■ | Provision
of data to support Annual 15-C Reporting |
| ■ | Customized
board reporting requires additional fees |
Tax
Services US
Core
Services (included in fee)
| ■ | Fiscal
year tax provision and Financial Statement Support |
| ■ | Annual
Shareholder Reporting (ICI Primary/Secondary/NRA) |
| ■ | Annual
Excise Tax Provisions |
| ■ | Annual
3rd Party Tax Return support |
| ■ | Annual
distribution support |
Note:
Client is responsible for PFIC/CFC identification and associated costs (e.g., E&Y PFIC database).
Optional
Tax Services – Additional Fees Apply:
| ■ | Preparation
and Review of Tax Returns |
| ■ | Signature
of Tax Returns as Paid Preparer by KPMG |
| ■ | Excise
period distribution estimate |
| ■ | Additional
full provision estimate |
| ■ | Passive
Foreign Investment Company Income (PFIC) Support |
| ■ | Additional
services available |
Control
Reporting
| ■ | Annual
Global Accounting and Boston Fund Financial Reporting SOC1 report issued every 6 months |
| ■ | 38a-1
quarterly attestation letter and annual Summary of Procedures |
| ■ | 38a-1
annual Attestation Review (AT C-205) |
APPENDIX 1 TO SCHEDULE 1
INVESTMENT INFORMATION AND REPORTING SERVICES
1. Definitions.
“Annual Fee”
means an amount equal to all fees payable by the Customer or the Accounts for the Services provided under this Appendix in a given calendar
year.
“Information Reports” means
those reports provided by ▇.▇. ▇▇▇▇▇▇ to the Customer in accordance with this Appendix.
“Material Error” means
an error in an Information Report provided under any Exhibit to this Appendix that fails to detect a material breach of one or more Service
Criteria applicable to the Account to which the Information Report relates, which material breach results in a loss that would not have
been incurred in the absence of the Material Error.
“Service Criteria” means those
Customer-defined investment and compliance reporting guidelines and requirements reasonably acceptable to ▇.▇. ▇▇▇▇▇▇ with respect to
its ability to service such guidelines agreed between the Customer and ▇.▇. ▇▇▇▇▇▇ which are capable of objective determination as more
particularly described in the Exhibits to this Appendix.
| (a) | ▇.▇. ▇▇▇▇▇▇ will provide to the Customer the reporting services detailed in the Exhibit(s) to this Appendix. |
| (b) | ▇.▇. ▇▇▇▇▇▇ has no duty to advise the Customer or the Investment Adviser as to the purchase or sale of
any Securities or other property or to monitor the performance of the same, except for the purpose of producing the Information Reports
or providing related services, and ▇.▇. ▇▇▇▇▇▇ is not liable for the failure by the Customer, the Investment Adviser or other person acting
on the Accounts’ behalf to adhere to the Service Criteria or any recommended course of action to address service breaches. In addition,
the Customer agrees and acknowledges that the Information Reports are based on historical information and ▇.▇. ▇▇▇▇▇▇ has no duty and
is not authorized to prevent or amend any investment by the Customer or the Investment Adviser. |
| (c) | The Customer acknowledges and agrees that ▇.▇. ▇▇▇▇▇▇ may make use of various calculation methodologies
in preparing one or more of the Information Reports and that the Customer has had an opportunity to make inquiries regarding ▇.▇. ▇▇▇▇▇▇’▇
methodologies therefor and for the Services provided pursuant to this Appendix, as applicable, and, whether or not the Customer availed
itself of such opportunity, the Customer hereby agrees to ▇.▇. ▇▇▇▇▇▇’▇ use of such methodologies in preparing the applicable Information
Reports. |
3. Liability.
| (a) | Notwithstanding any other provision of this Agreement, to the maximum extent permitted by Applicable Law,
▇.▇. ▇▇▇▇▇▇’▇ aggregate liability arising from an event or events occurring during any calendar year with respect to any Service provided
under any Exhibit to this Appendix shall be an aggregate amount equal to five times the Annual Fees payable for all the Services provided
by ▇.▇. ▇▇▇▇▇▇ under that particular Exhibit. |
| (b) | The Customer expressly acknowledges that index performance is not illustrative of any particular investment,
and that ▇.▇. ▇▇▇▇▇▇’▇ groupings of the Accounts are constructed based on the Customer’s direction only. |
| (c) | ▇.▇. ▇▇▇▇▇▇ makes no warranties or representations of any kind, whether express, implied, statutory or
otherwise, concerning the Information Reports or the Services provided hereunder. |
Exhibit 1 to Appendix 1 - Compliance
Reporting Services
▇.▇.
▇▇▇▇▇▇ will provide the below-indicated Compliance Reporting services for the Customer on a daily basis with respect to the Account(s)
indicated by the Customer:
Standard
Compliance Reporting
Standard
Compliance Reporting is an exception-based reporting service designed to assist clients in detecting potential warnings and violations
in connection with pre-agreed investment guidelines. Reporting is set at account level or applied to composite scheme structures, and
is made available to the Customer via ▇.▇. ▇▇▇▇▇▇ Markets. Frequency of monitoring is aligned to the frequency of the Customer’s Fund
Accounting service through ▇.▇. ▇▇▇▇▇▇.
| ■ | | Standard
client setup process involves: |
| ■ | Agreement
to and documentation of rules to be applied (in accordance with accepted compliance criteria); |
| ■ | Creation
of agreed rules and tests in the compliance system; and |
| ■ | Setup
of the Customer’s access to the reporting application and interface on ▇.▇. ▇▇▇▇▇▇ Markets
(Breach Register). Access can be facilitated for up to 10 users from the Customer’s compliance
and risk teams, following the subscription to the service. |
Additional
Compliance Reporting benchmarks can be incorporated at a constituent level (on an out-ofpocket basis) to provide the ability to compare
country, industry, issue, ratings and duration to the benchmark, on terms separately agreed with the Customer.
Breach
Review
| ■ | | Breach
Review Services include the following: |
| ■ | Review
of all reported potential violations and warnings (together, “adverse events”); |
| ■ | Research
of reported adverse events in accordance with agreed procedures; |
| ■ | Reporting
of whether an adverse event is valid and ongoing or can be cleared as false or resolved,
in collaboration with the Customer; |
| ■ | Recommendation
and Initiation of rule changes to enhance rule reporting, where appropriate; and |
| ■ | Final
analysis of and assistance to the Customer in ‘closing’ any adverse event breaches (the responsibility
for which will still rest with Customer), along with final findings. |
Fund
Manager Follow-up
| ■ | Review
of all the exception reports triggered from the Customer’s compliance parameters; |
| ■ | If
necessary, contact with the fund manager to confirm the portfolio position and discuss the
compliance breach; |
| ■ | Creation
and submission to the Customer of a narrative of the dialogue with the fund manager within
the ▇.▇. ▇▇▇▇▇▇ Markets Breach Register, along with details of the fund manager’s response;
and |
| ■ | Allocation
of individual breaches and adverse event causes to specific Customer employees, as appropriate
and on terms pre-agreed with the Customer. |
Additional
Notes:
Client-Specific
Market Data: ▇.▇. ▇▇▇▇▇▇ reserves the right to charge the Customer for procuring data related to
benchmarks, any other additional market reference data or third party accounting / collateral data that is not currently subscribed or
sourced by ▇.▇. ▇▇▇▇▇▇ or for which ▇.▇. ▇▇▇▇▇▇ is charged a per-customer fee or incurs additional one-off or ongoing costs.
Exhibit 2 to Appendix 1 - Performance
Measurement Services
▇.▇.
▇▇▇▇▇▇ will provide the below-indicated Performance Measurement services for the Customer on a daily basis with respect to the Account(s)
indicated by the Customer:
| ■ | Performance
Measurement Services include the calculation and analysis of investment returns and asset
allocation on an absolute and relative basis. The reporting provided by ▇.▇. ▇▇▇▇▇▇ will
include portfolio, composite and benchmark rate of return calculations, as well as access
to ex-post risk statistics such as volatility, tracking error and ▇▇▇▇▇▇ ratio. |
| ■ | Performance
Measurement Services require the Customer’s subscription to ▇.▇. ▇▇▇▇▇▇’▇ accounting service. |
The
Customer subscribes for the Performance Measurement Services indicated below:
| ☐ | Performance
Basic: The basic performance service calculates returns at a total portfolio level only,
or where the portfolio solely holds commingled/pooled funds. |
Additional
Information
| ■ | Performance
can be calculated both gross and net of fees, where the relevant fees are processed within
the client portfolio. |
| ■ | Additional
fees may apply for indices or complex benchmark calculations not currently supported by ▇.▇.
▇▇▇▇▇▇. All index data availability is subject to appropriate third-party vendor agreements
being in place. |
| ■ | Access
to a standard package of online reports and dashboards via ▇.▇. ▇▇▇▇▇▇ Markets is included. |
| ■ | At
the start of service, historical total portfolio, composite and benchmark level data can
be loaded at no additional cost if supplied in ▇.▇. ▇▇▇▇▇▇’▇ requested format. The requirements
will be discussed with the Customer prior to onboarding. |
Appendix A to Schedule 1
NET ASSET VALUE ERROR CORRECTION POLICY & PROCEDURES
The following terms shall have the meaning hereinafter
stated:
“Fund”
means an investment fund for which ▇.▇. ▇▇▇▇▇▇ provides NAV calculation services under the Agreement.
“Fund
Benefit” means a situation where a Fund has either paid insufficient redemption proceeds as a result of an understatement
of NAV or received excessive subscription proceeds as a result of an overstatement of NAV. When such a Fund Benefit occurs, the individual
Shareholders effecting transactions suffer a corresponding loss (a “Shareholder Loss”).
“Fund
Loss” refers to a situation where a Fund has either paid excessive redemption proceeds as a result of an overstatement
of the NAV or received insufficient subscription proceeds as a result of an understatement of the NAV. When such a Fund Loss occurs, the
individual Shareholders effecting transactions received a corresponding benefit.
“NAV”
shall mean the net value of a Fund’s assets and liabilities.
“NAV
Error” is defined as one or more errors in the computation of net asset value which, when considered cumulatively, result
in a difference between the originally computed NAV and the corrected NAV of at least USD 0.010 (one cent) per Share. This computation
is based upon the actual difference and is not based upon any rounding of the NAV.
“NAV
Error Period” comprises those days during which a NAV Error existed.
“Net
Fund Loss (Benefit) Amount” means an amount equal to the difference between (i) the aggregate amount of Fund Losses
less (ii) the aggregate amount of Fund Benefits arising out of a given NAV Error. This amount shall be a “Net Fund Loss Amount”
when a positive number and a “Net Fund Benefit Amount” when a negative number.
“Per
Share NAV”
shall mean the result obtained by dividing a Fund’s NAV by the number of existing Shares of the Fund. In determining
Share value, fractions will be taken to two or four decimal places, as agreed upon with the Customer. Share value shall be determined
as of each valuation date before taking into account additions to and withdrawals from the Fund occurring as of such valuation date.
“Per
Share NAV
Error” is the difference between the originally computed per Share NAV, and the amount that would have been computed
had the errors not occurred.
“Shareholder” means a holder
of one or more Shares.
“Shares” means the units or
shares issued by the Fund.
The term “responsible
person” means one or more persons who, by virtue of negligence, fraud, or willful misconduct, caused or contributed to
an NAV Error.
▇.▇. ▇▇▇▇▇▇ shall not be liable for any Shareholder
Loss, Fund Loss or Net Fund Loss Amount in the absence of ▇.▇. ▇▇▇▇▇▇’▇ negligence. ▇.▇. ▇▇▇▇▇▇ shall not be liable for (i) the
accuracy or completeness of any information provided to ▇.▇. ▇▇▇▇▇▇ by the Investment Adviser or any Information Provider, (ii) values
stated by the trustee of any group trust, including common and collective funds (each, a “Group Trust”), which shall
be reported at the value stated by the trustee of the Group Trust (other than when ▇.▇. ▇▇▇▇▇▇ is the trustee), (iii) the net asset value
or other unit or share value as
announced by any limited partnership, limited liability company,
investment company, or other fund or its operator, (iv) any redemption fees, surrender charges or similar fees or charges imposed on any
investment held by the Fund; or (v) NAV errors, as described in Section 3(a) below.
| 3. | | Error Correction Procedures |
The following procedures will be utilized by
▇.▇. ▇▇▇▇▇▇ with respect to NAV error corrections:
| (a) | If the error in the computation of the net asset value is less than USD 0.010 (one cent) per Share, no action shall be taken. |
| (b) | If a Per Share NAV Error is less than ½ of 1% (one half of one percent) of the originally computed Per Share NAV, ▇.▇. ▇▇▇▇▇▇, on
behalf of the Fund, will determine whether total Fund Losses exceeded total Fund Benefits for the NAV Error Period. If the Fund incurred
a Net Fund Loss Amount, the Customer will be responsible for obtaining reimbursement for such loss from the responsible person or persons,
which may include ▇.▇. ▇▇▇▇▇▇. If the Fund had a Net Fund Benefit Amount, no action needs to be taken; however, such Net Fund Benefit
Amount should not be carried forward to any analyses performed in the future for other NAV Errors that may arise. |
| (c) | If the Per Share NAV Error equals or exceeds ½ of 1% (one half of one percent) of the originally computed Per Share NAV, 1) account
adjustments should be made to compensate Shareholders for Shareholder Losses, and 2) the Customer will be responsible for obtaining reimbursement
for such loss from the responsible person or persons, which may include ▇.▇.▇▇▇▇▇▇, for Fund Losses. |
| (i) | With respect to individual Shareholder Losses, the Customer will be responsible for causing the Fund (or responsible party) to pay
to individual Shareholders any additional redemption proceeds owed and either refund excess subscription monies paid or credit the Shareholder
account as of the date of the NAV Error, for additional Shares. Nevertheless, no correction of a given individual Shareholder account
shall be made unless the applicable Shareholder Loss for such Shareholder equals or exceeds a de minimis amount of USD 25 (twenty-five
dollars). |
| (ii) | With respect to Fund Losses, the Customer will be responsible for causing either the responsible person or persons or the individual
Shareholders to reimburse the Fund for the amount of the Fund Losses. (Note that there is no netting of Fund Losses (as described in (b)
above) where the error equals or exceeds ½ of 1% (one half of one percent) of NAV, to the extent benefits were paid out by the Fund to
Shareholders as account adjustments). |
| (d) | In the case of an NAV Error that fluctuates above and below ½ of 1% (one half of one percent) individual Shareholder adjustments should
be effected for those days where the NAV Error was equal to or exceeded ½ of 1% (one half of one percent). With respect to the remaining
days, the Fund level process described in Sections 3(a) and (a) above shall apply. |
| (e) | If there is a subsequent discovery of an error which affects a NAV Error Period that had previously been corrected in the manner described
above, the subsequently discovered NAV Error should be analyzed in isolation without taking into consideration the previously corrected
NAV Errors. |
| (f) | In cases where an NAV Error (as described in (c) above) has occurred,
the Customer, upon
▇.▇. ▇▇▇▇▇▇’▇ request, will instruct the Transfer Agent to reprocess transactions
and to adjust each Shareholder’s Shares upwards or downwards accordingly, at the expense
of the responsible person or persons. If the Transfer Agent does not agree to reprocess transactions
resulting from an NAV Error for which ▇.▇. ▇▇▇▇▇▇ is a responsible
person, ▇.▇. ▇▇▇▇▇▇’▇ liability will be limited to the amount it would have been
liable for had the reprocessing occurred. |
| (g) | In cases where ▇.▇. ▇▇▇▇▇▇ is not the responsible person with regard to an NAV Error, ▇.▇. ▇▇▇▇▇▇ shall
be entitled to reasonable compensation from the Customer or the Fund for the work it performs with respect to the remediation of the NAV
Error. |
In cases where ▇.▇. ▇▇▇▇▇▇ is a responsible
person with regard to an NAV Error, but not the sole responsible person, the Customer or the Fund, to the extent customary under industry
practice, shall seek recovery from each such responsible person, for its proportional share of the applicable Fund Loss, Net Fund Loss
Amount or Shareholder Loss, as applicable.